1

Legal System

●​Definition of Law & Legal System

●​ Law
Law is a concept that represents a network of rules and regulations that
govern behavior of the individuals within a society. It can be described
as “governmental social control”, meaning it encompasses social rules
and processes that encourage good conduct and discourage bad conduct.
Law is not just limited to criminal justice but also includes civil justice,
covering rules about contracts, torts, and other non-criminal interactions.
It is an abstraction and social construct, existing as an invisible presence
in everyday activities and interactions.

●​ Legal System
The legal system is a broader concept than law itself. It includes not only
the rules and regulations but also the structures, institutions, and
processes that enforce and interpret these laws. According to Professor
HLA Hart, the legal system involves primary rules, which dictate
specific behaviors, and secondary rules, which are about how the
primary rules are created and enforced. It encompasses the dynamic
interaction between laws, institutions, and people, creating a living
system where laws are applied and acted upon in real-world scenarios.

Professor HLA Hart listed five factors which had to co-exist to create a
legal system. These are as follows:

1.​ Rules which either forbade certain conduct or compelled certain

conduct at pain of sanctions;
2.​ Rules requiring people to compensate those whom they injured;
 2

3.​ Rules stating what needs to be done in certain ‘mechanical’ areas

of law such as making a contract or making a will;
4.​ A system of courts to determine what the rules are, whether they
have been broken and what the appropriate sanctions is; and
5.​ A body whose responsibility it is to make rules and amend or
repeal them as necessary.

●​Elements
1.​Structure
This encompasses the organizational framework of the legal system,
including the number and types of courts, their jurisdictions, legislative
organization, regulatory bodies like the Federal Trade Commission in
the USA, and procedural aspects such as police department protocols.

2.​Substance
Substance means the actual rules, norms, behaviors, and decisions
within the legal system. It includes laws, regulations, enforcement
patterns, judicial decisions, and the practical application of legal
principles in specific cases.

3.​Legal Culture
This encompasses the attitudes, beliefs, values, ideas, and expectations
of individuals and groups within society regarding the legal system. It
influences how law is perceived, utilized, or challenged, and it plays a
significant role in shaping legal behavior and outcomes.

The three elements of law can be visualized as a machine. The

“structure” is the machine itself, the “substance” is what the machine
produces or performs, and the “legal culture” is the entity or influence
that decides when to operate the machine and how it will be utilized.
 3

●​Functions
1.​Social Control
The legal system regulates behavior to maintain public order and prevent
chaos. It imposes duties and responsibilities on individuals to ensure
compliance with societal norms.

2.​Control over the Controllers

The legal system holds those in power accountable, ensuring that laws
are applied fairly and justly. It includes mechanisms to check the abuse
of power by government officials and other authorities.

3.​Dispute Settlement
The legal system provides methods for resolving conflicts and disputes
between individuals, organizations, and the state. This function is carried
out through courts and alternative dispute resolution mechanisms.

4.​Redistributive or Social Engineering Function

The legal system aims to redistribute resources and opportunities to
promote social justice and equality. It can enact laws to address
economic disparities and enhance social welfare.

5.​Social Maintenance
The social maintenance function of the legal system is to uphold and
enforce societal norms and rules to ensure stability and order. While
customs, culture, traditions, and informal norms contribute to societal
cohesion, they are insufficient on their own in modern society. The legal
system provides necessary structure by enforcing laws, such as evicting
 4

intruders, protecting rights by offering legal recourse for issues like debt
collection, and maintaining order by preventing and resolving conflicts.

6.​Promoting Both Continuity and Change

The legal system balances preserving traditional values with enabling
social progress and at the same time it adapts to new challenges and
evolving societal needs while ensuring stability.

7.​Claims of right
It provides a mechanism for individuals to challenge government
decisions and seek relief from perceived injustices or mistakes.

Civil Law & Common Law

●​Civil Law System

The Civil Law System is one type of legal system which is derived from
the ancient Roman legal system, known as “jus civile”. It has evolved
over centuries, starting from the ancient period when Roman law was
characterized by a strict legal system. Over time, the introduction of the
“praetor”, a judicial magistrate, allowed for a more flexible and liberal
application of the law.

The balance between the strict “jus civile” and the influence of the
praetors shaped the development of the Civil Law System. Highly
skilled jurists played a significant role in interpreting and applying the
law, contributing to its evolution.
 5

Emperor Justinian further solidified the Civil Law System by compiling

a comprehensive body of law known as the Corpus Juris Civilis (Code
of Justinian). This compilation became a foundational source of law in
the Byzantine Empire and later influenced legal systems across Europe.

Although Roman law declined during the Middle Ages, it regained

prominence during the Renaissance and Enlightenment periods. Its
influence can be seen in the codifications of law in various European
countries, contributing to the development of modern legal systems
based on civil law principles.

●​Common Law System

The Common Law System originated in England and developed from
the feudal system. Disputes were initially settled locally, but with the
establishment of King's Courts, central courts were created to ensure
uniformity in legal decisions and develop general norms applicable
throughout the country. This led to the emergence of “common law”,
which consisted of legal principles and precedents established by court
decisions.

Over time, conflicts arose between common law and legislation as

statutes encroached upon common law principles. Courts approached
this conflict cautiously, interpreting statutes in a way that minimized
conflicts with established common law principles.

Additionally, equity developed as a distinct branch of law, separate from

common law. Equity focused on providing remedies and procedures
where common law fell short, and its evolution mirrored aspects of
Roman praetorian justice. Eventually, the common law and equity
 6

systems were fused together, similar to the evolution of Roman legal

systems, creating a more comprehensive legal framework.

●​Comparison between Civil Law & Common Law

Some argue that the differences between civil law and common law have
diminished due to parallel developments to meet similar societal needs,
while others point out the existence of “mixed jurisdictions” where both
systems coexist. For effective comparative study, it's essential to seek an
understanding of the fundamental differences in the structures, methods
of thought, and attitudes towards the law within civil and common law
systems.

1.​History & Development

The legal system is dynamic and intertwined with the life of the people it
serves. Understanding civil law and common law requires an
examination of their historical development.

A.​Civil Law
(See Page 7-8)

B.​Common Law
(See Page 8-9)

2.​Legislation & Judicial Decision

In comparing the sources of positive law in civil law and common law
systems, two key aspects are legislation and judicial decisions.

A.​Legislation in Civil Law

Civil law jurisdictions rely heavily on legislation as the primary source
of law. Civil codes are comprehensive collections of laws regulating
 7

various aspects of interpersonal relationships, structured around general

principles rather than specific rules. Codes are subject to liberal
interpretation to accommodate new situations, with importance placed
on preparatory works and parliamentary discussions. Legislation is
highly respected, and courts interpret statutes liberally to uphold the law.

B.​Judicial Decisions in Common Law

In the common law tradition, judicial decisions play a central role in
shaping the law. Precedent is crucial, with courts bound to follow
previous decisions on similar issues. The doctrine of precedent ensures
stability and continuity in the law, but judges have flexibility to
distinguish or overrule precedents when necessary. The judge is the focal
point in the development of common law, and decisions serve as both
the source and proof of the law.

C.​Legislation in the Common Law

Statutes in common law countries often consist of specific rules for
particular situations rather than general principles. Historically, the
growth of Parliament was a counterbalance to royal power, leading to a
cautious attitude towards legislation from judges. Strict methods of
statutory interpretation are employed to minimize the impact of
legislation on common law principles.

D.​Judicial Decisions in Civil Law

Civil law courts interpret legislation, often extending the scope of laws
beyond their original intent. Prior decisions mainly guide interpretation
of written texts rather than serving as sources of law themselves. There
is no binding precedent, and each case must be decided based on
legislative texts, though consistent decisions may establish binding
 8

jurisprudence. In some cases, detailed rules are delegated to judicial

decisions due to limited legislative provisions.

3.​Doctrinal Materials, Legal Education & Research

The relative importance of legislation and judicial decisions in civil law
and common law systems has several consequential effects on doctrinal
materials, legal education, and research methodologies.

A.​Doctrinal materials
In civil law countries, legal writings focus on systematic expositions of
broad legal principles and theories, while in common law countries,
doctrinal writings analyze decided cases to establish and evaluate their
distilled essence.

B.​Legal education
Legal education in civil law systems emphasizes legislation,
codification, and doctrine, whereas in common law systems, it
prioritizes the study of decided cases and the role of courts in law
development. The heroes of civil law are legal scholars, while in
common law, outstanding judges are revered.

C.​Research
In civil law systems, legal research typically starts with legislation,
followed by commentary and treatises, and then cases. In contrast,
common law research primarily focuses on prior judicial decisions, with
legislation being examined for applicability.

4.​Judges & Courts

The differences between the civil law and common law systems extend
to their respective judges and courts. While both aim to answer legal
 9

questions and resolve disputes, there are disparities that need to be

recognized and evaluated. Here are the key points of comparison:

A.​Training and recruitment of judges

In common law countries, judges typically have a background as
attorneys or barristers with practical experience before being appointed
or elected to the bench. In civil law countries like France, judges receive
similar legal education but undergo separate training for the judicial
profession, approaching the law more theoretically.

B.​Method of deciding cases

Civil law judges start with legislation to find the controlling principle
and apply it to the specific case. Common law judges rely on precedent,
searching for similar cases in previous decisions and interpreting statutes
when necessary.

C.​Personal or collective character of decisions

In civil countries, judges remain anonymous due to the collegial system,
while in common law countries, opinions are identified with judicial
authors and can include dissenting or concurring opinions.

D.​Manner of writing opinions and decisions

Common law decisions are more detailed, analyzing facts and previous
cases to establish precedent, while civil law decisions are shorter,
focusing on relevant facts, legal principles, and application to the case at
hand.

E.​Silence or insufficiency of the law

 10

Common law judges have more flexibility in creating rules when the law
is silent, whereas civil law judges must adhere closely to legislation and
may resort to filling gaps in the law through interpretation or analogy.

Overall, while both systems aim to resolve disputes and interpret the
law, they do so with distinct approaches and methodologies that reflect
their historical development and legal principles.

●​Bangladeshi Legal System

Since independence, the legal system of Bangladesh has been following
a mixture of the common law and civil law system. There are several
reasons behind this:

●​ Colonial History
Bangladesh was part of British India and was under British colonial rule
until 1947. During this period, British common law principles were
introduced and applied in the region. The British legal system, based on
English common law, played a significant role in shaping the legal
framework in Bangladesh.

●​ Legal Heritage
The British colonial administration introduced common law principles,
legal procedures, and concepts like precedent into the region. Many of
these legal principles and institutions continue to influence the legal
system of Bangladesh.

●​ Codified Laws
However, after gaining independence in 1971, Bangladesh also adopted
some elements of civil law traditions. The country has enacted a number
of codified laws that govern various areas of law, such as family law,
 11

contract law, property law, and administrative law. These codified laws
are characteristics of civil law systems.

●​ Legal Education & Training

Legal education in Bangladesh is influenced by both common law and
civil law traditions. Law schools teach a combination of legal principles,
including common law concepts and principles based on codified laws.

●​ Legal Practitioners
Lawyers in Bangladesh often practice in both civil and criminal matters.
They are trained in interpreting and applying various laws, including
codified laws and principles established through judicial decisions.

●​ Judicial System
The judiciary in Bangladesh interprets and applies both codified laws
and judicial precedents. The country has a hierarchical court system,
with the Supreme Court at the apex.

●​ Influences of Islamic Law

Bangladesh is a predominantly Muslim country, and Islamic law
(Sharia) has an important role in family and personal matters. The
application of Islamic law adds another layer of complexity to the legal
system and is separate from the common law and civil law influences.

●​ Precedent & Judicial Decisions

Precedent is not as strong in Bangladesh as it is in purely common law
systems like the United Kingdom. While judicial decisions of higher
courts are binding on lower courts, courts in Bangladesh often rely on
both precedent and statutes in their decisions.
 12

●​ Civil Law Principles in Bangladesh

●​ Codification
Like civil law systems, Bangladesh places emphasis on codified laws
that are organized into comprehensive codes. The country has its own
legal codes that cover areas such as family law, property law, contract
law, and more. These codes provide structured and comprehensive rules
for various legal matters.

●​ Legislative Supremacy
Civil law jurisdictions often prioritize legislative enactments as the
primary source of law. Similarly, in Bangladesh, laws enacted by the
Parliament hold a significant place in the legal hierarchy and serve as
authoritative sources of legal rules.

●​ Inquisitorial Elements
While Bangladesh follows an adversarial system of justice, there are also
elements of the inquisitorial system present, particularly in some areas of
law. For instance, family law matters often involve court-appointed
officers who investigate and report on family disputes before a judge
makes a decision.

●​ Role of Legal Scholars and Commentary

Civil law systems often value the contributions of legal scholars and
academic commentary to the interpretation and understanding of laws.
Similarly, Bangladeshi legal education often involves the study of legal
treatises and commentaries written by legal scholars to aid in the
interpretation of laws.

●​ Non-Judicial Legal Sources

 13

Civil law principles extend beyond judicial decisions to include a variety

of legal sources such as academic writings, legal doctrine, and expert
opinions. These sources contribute to the interpretation and application
of laws in Bangladesh.

●​ Statutory Interpretation
Given the prevalence of codified laws, the principles of statutory
interpretation found in civil law systems are relevant in Bangladesh.
Courts interpret statutes based on their literal meanings and legislative
intent.

●​ Common Law Principles in Bangladesh

●​ Precedent
Bangladesh follows the doctrine of judicial precedent, where decisions
made in higher courts are binding on lower courts and can serve as
guiding principles for future cases. This principle helps ensure
consistency and predictability in the interpretation and application of
laws.

●​ Stare Decisis
The principle of judicial precedent is known as “stare decisis”, which is
Latin for “to stand by things decided.” It is a fundamental principle of
common law systems, including Bangladesh, where past legal decisions
serve as binding precedents for future cases with similar legal issues.
Stare decisis ensures consistency and predictability in the application of
the law. It helps maintain the integrity of the legal system by requiring
courts to respect and follow established legal principles.

●​ Case Law
 14

Like common law systems, Bangladeshi legal system places

considerable importance on case laws. Decisions made by higher courts,
particularly the Appellate Division of the Supreme Court of Bangladesh,
set important legal precedents and contribute to the development of legal
principles.

●​ Judge-Made Law
Similar to common law jurisdictions, Bangladeshi judges have the
authority to interpret laws and fill gaps in legislation through their
decisions. This allows for the development of legal principles based on
evolving societal norms and needs.

●​ Adversarial System
Bangladesh follows an adversarial system of justice, where opposing
parties present their arguments before a neutral judge. This system
encourages parties to present their cases robustly, allowing the judge to
make an informed decision based on the presented evidence and legal
arguments.

Hierarchy of Sources of Law in Bangladesh

Article 152(1) of the Constitution

“Law” means any Act, ordinance, order, rule, regulation, bye-law,
notification or other legal instrument, and any custom or usage, having
the force of law in Bangladesh.

●​What Is Hierarchy of Norms

In a legal system, legal acts and other rules and regulations are organized
in a sequence based on their importance. Within this sequence, rules at
 15

lower levels are subject to and regulated by those at higher levels. For
example, in the United States, statutes take precedence over regulations,
and federal laws supersede state laws.

The hierarchy of norms exists for several reasons. Firstly, conflicts

between laws, rules, regulations, and norms can arise, necessitating a
hierarchy to resolve these conflicts by giving validity to the highest
source. A legal system cannot function effectively if its components are
in conflict.
Secondly, when two norms of the same hierarchical level are mutually
incompatible, an authorizing norm must be applied to determine which
norm will prevail. For instance, if a dispute arises regarding whether to
apply criminal law or civil law to a particular issue, the court will refer
to a higher statute to decide the matter.

●​Kelsen's Pure Theory of Law

The pure theory of law was propounded by Austrian jurist and
philosopher Hans Kelsen in California (1881-1973). According to
Kelsen, the norms, rules, laws, and regulations of a legal system are
structured in a pyramidal hierarchy, with each norm positioned beneath
another and deriving its validity from a superior norm. The highest level
is the fundamental norm or Grundnorm, which serves as the foundation
for all subsequent norms. This process, known as “concretization”,
establishes the validity and authority of norms from lower to higher
levels, ultimately reaching the grundnorm. For example, a statute derives
its legal authority from the legislative body, which, in turn, derives its
authority from the Constitution. This hierarchy of norms is evident in
every legal system, where each legal act is related to a norm that
validates it. Since a legal norm derives its validity from another norm,
the latter is the reason for the former's validity. A legal norm is a binding
 16

rule or principle promulgated and enforced by sovereign power to

regulate social relations, attributing specified legal effects when certain
conditions are met. The validity of a norm is derived from “ought”
norms that validate it, as determined by its authorizing norm. Therefore,
a particular norm is “authorized” if it aligns with a more general norm.

●​ Grundnorm
In any legal order, a hierarchy of norms can be traced back to an initial,
fundamental norm upon which the validity of all others ultimately
depends. Kelsen referred to this fundamental norm as the grundnorm,
which serves as the cornerstone of his ideology. The grundnorm can be
utilized to assess the legality or validity of any norm.

The validity of the grundnorm cannot be objectively determined. It is a

hypothetical norm that cannot be derived from any other legal norm but
functions as the ultimate source of authority. While there should not be
complete disregard for the grundnorm, universal adherence to it is not
necessary. It is sufficient for the grundnorm to command a minimum
level of effectiveness, i.e., acceptance and support from a minimum
group of people willing to abide by it. When the grundnorm no longer
receives this minimum support, it ceases to serve as the basis of the legal
order, and another proposition that does obtain support will replace it.

In International Law, Kelsen acknowledges the existence of two

grundnorms: the supremacy of each municipal legal system and the
supremacy of International Law.

According to Kelsen, the grundnorm may vary in each legal system, but
it is always present, whether in the form of a written Constitution or the
will of a superior authority.
 17

●​ Primary Norms
In Kelsen’s hierarchy of norms, if it is conceptualized as a pyramid, at its
apex lies a superior, fundamental, hypothetical, and unchangeable
grundnorm. Beneath that, there are primary norms which derive their
validity from the grundnorm. These primary norms govern specific
aspects of society, such as contract law, criminal law, and administrative
law.

●​ Secondary Norms
In the pyramid hierarchy of norms, secondary norms are positioned
beneath primary norms and derive their validity from them. Secondary
norms include:
●​ Rules governing the creation, modification, interpretation, and
application of primary norms.
●​ Rules of procedure.
●​ Judicial interpretation.

●​ Tertiary Norms
Tertiary norms are further subordinated to secondary norms and serve to
operationalize the legal process. They govern the application of
secondary norms, such as rules for judicial decision-making and
administrative procedures.

●​Hierarchy of Norms in the Legal System of

Bangladesh
The hierarchy of norms in any legal system is not fixed; rather, it
depends on the written constitution or any other superior source of law
in each individual country. Therefore, the hierarchy and sources of law
 18

may evolve, and the legal system of Bangladesh is subject to changes

brought about by legislative amendments and judicial decisions.

●​ Grundnorm: Constitution
The constitution is the supreme and fundamental source of law in the
legal system of Bangladesh. Any law, ordinance or act inconsistent with
the constitution is void to the extent of inconsistency. The constitution
can be referred to as the grundnorm of the hierarchy of norms because
every other strata of the legal system that is dependent on it gets
validated by it.

Article 7 of the Constitution

1.​ All powers in the Republic belong to the people, and their exercise
on behalf of the people shall be effected only under, and by the
authority of, this Constitution.
2.​ This Constitution is, as the solemn expression of the will of the
people, the supreme law of the Republic, and if any other law is
inconsistent with this Constitution that other law shall, to the
extent of the inconsistency, be void.

Article 26 provides that all existing laws inconsistent with the

fundamental rights as provided in part III shall to the extent of the
inconsistency become void on the commencement of the constitution.

Article 26 of the Constitution

1.​ All existing law inconsistent with the provisions of this Part shall,
to the extent of such inconsistency, become void on the
commencement of this Constitution.
 19

2.​ The State shall not make any law inconsistent with any provisions
of this Part, and any law so made shall, to the extent of such
inconsistency, be void.

(Questions can arise about whether the Constitution can actually serve as
the grundnorm on its own because other norms underpin the
Constitution, granting it validity. This is why Kelsen argued that the
Constitution cannot function as the grundnorm. Furthermore, the
Constitution of Bangladesh has undergone several amendments, but the
grundnorm is something that must remain unchanged. Therefore, in its
true sense, the Constitution cannot fulfill the role of the grundnorm.)

●​ Primary Norms: Legislation (Act & Ordinance)

Beneath the constitution, the legal system of Bangladesh consists of
various laws and statutes enacted and promulgated by legislative bodies.
These laws cover various areas, including civil, criminal, and
administrative law.

●​ Act
An “Act” refers to legislation or laws that are formally passed by the
national or regional legislature. In the context of Bangladesh, Acts are
typically passed by the National Parliament and they are the highest
form of legal authority.

According to Article 65(1) of the constitution, there shall be a

parliament for Bangladesh (to be known as the House of the Nation) in
which the legislative powers of the republic shall be vested. Acts of
Parliament are texts of law passed by the Parliament, which begins as a
bill which the Parliament members vote on.
 20

For example, Bengali Language Introduction Act 1987, Women and

Child Abuse Suppression Act 2000, Anti Corruption Commission Act
2004.

●​ Ordinance
An “ordinance” is a temporary law that can be promulgated by the
president when the Parliament is not in session. Ordinances have the
force of law and are used in urgent situations when immediate actions
are required. Article 93 of the Constitution has given the President of
Bangladesh the power to promulgate an ordinance when immediate
action is necessary and the Parliament stands dissolved or not in session.
An ordinance has the same force of law as an Act of Parliament.
However, an ordinance must not include certain provisions that are:

1.​ not made lawfully under the Constitution;

2.​ altering or replacing any provision of the Constitution; or
3.​ continued in force any provision of an Ordinance previously made.

The ordinance is laid before the Parliament at its first meeting following
its promulgation. The ordinance ceases to have effect at the expiration of
thirty days after it is laid before Parliament. If the Parliament passes a
resolution disapproving of the ordinance before such expiration, the
ordinance ceases to have effect upon the passing of resolution.

For example, Bangladesh Energy Regulatory Commission Ordinance,

2022, The Family Courts Ordinance, 1985.

●​ Secondary Norms: Delegated Legislation (Rule,

Regulation, Bye-Law, Order & Notification)
 21

Delegated legislation includes rules, regulations, bye-laws and other

instruments created and promulgated by the authority of specific laws
enacted by the parliament.

●​ Limitations of Delegated Legislation

●​ Judicial Control
Delegated legislation can be challenged in court if:
○​ The delegating legislation itself is not constitutionally valid.
○​ The delegated legislation is not constitutionally valid.
○​ The delegated legislation exceeds the authority granted by
the delegating statute (ultra vires).
○​ The delegated legislation is made in bad faith, arbitrarily, or
unreasonably.

●​ Rule
“Rules” are secondary pieces of legislation that provide detailed
regulations and procedures for implementing Acts passed by the
legislature. They often specify how the law should be applied in specific
situations.

For example, Article 62 of the Constitution says Parliament shall

provide law for regulating:

1.​ the raising and maintaining of the defense services;

2.​ the grant of commissions therein;
3.​ the appointment of chief of staff of the defense services and their
salaries and allowances;
4.​ the discipline and other matters relating to those services and
reserves.
 22

These are all “Rules” for the recruitment of defense services.

Article 116 of the Constitution gives "Rule-making power" to the

President to control the posting, promotion, grant of leave and discipline
of the persons employed in the judicial service in consultation with the
Supreme Court.

Article 107 of the Constitution gives “Rule-making power” to the

Supreme Court to make rules for regulating the procedure of each
division of the Supreme Court and of any court subordinate to it with the
approval of the President.

●​ Regulation
“Regulations” are administrative directives that provide detailed
guidance on how to implement a law or statutory framework. They are
typically issued by the government agencies or departments to regulate
the works under the statutes issued by the government.

●​ Bye-Law
“Bye-laws” are the local or subsidiary laws enacted by local authorities,
municipalities or other similar bodies to regulate the local legal affairs
according to the statutes issued by the Government. They are subsidiary
to higher-level laws.

●​ Order
An “Order” is a directive or command issued by a competent authority,
typically a government official or department. Orders can have legal
implications and they are binding when issued within the scope of law.
 23

For example, Bangladesh Bank Order, 1972, The Dhaka University

Order, 1973.

●​ Notification
A “notification” is an official announcement or notice issued by a
government authority to convey information or changes in a legal matter.
It can work as a source of law depending on its content.

●​ Tertiary Norms: Precedent & Customary Law

Precedents and Custom can be imagined as tertiary norms in the
hierarchy of sources of law in Bangladesh.

●​ Judicial Precedent
The decisions made by higher courts in Bangladesh, are considered
binding precedent for lower courts. Lower courts are bound to follow the
legal principles established in the higher court judgements.

Article 111 of the Constitution

The law declared by the Appellate Division shall be binding on the High
Court Division and the law declared by either division of the Supreme
Court shall be binding on all courts subordinate to it.

●​ Principle of Judicial Precedent (Stare Decisis)

(See Page 16)

●​ Customary Law
Customary law refers to practices, traditions or conventions within a
specific community or group that are recognized and enforced as law.
The Constitution of Bangladesh acknowledge “custom or usage having
the force of law” as a source of law in Bangladesh.
 24

The statement “other legal instruments” in Article 152(1) includes legal

documents, agreements, memoranda, and treaties that have legal
significance within the jurisdiction.

International Law & Law without the States

●​International Law
International law has two different approaches:

1.​Monism
Monists accept that the internal and international legal systems form a
unity. Both national legal rules and international rules that a state has
accepted, for example by way of a treaty, determine whether actions are
legal or illegal.

In a pure monist state, international law does not need to be translated

into national laws. It is simply incorporated and has effect automatically
in national or domestic law. The act of ratifying an international treaty
immediately incorporates the law into national laws. An international
law can directly be applied by a national judge and can be directly
invoked by citizens. In some monist countries, national law that
contradicts international law is null and void, even if it post-dates
international law or is constitutional in nature.

2.​Dualism
Dualism emphasizes the difference between national law and
international law and requires the transposition of the international law
 25

into national law. Without this translation, international law does not
exist as law. If a state accepts an international treaty but does not adopt it
as national law to conform or incorporate the treaty, then the treaty is not
a part of national law. Citizens cannot rely on it and judges cannot apply
it. National laws that contradict it remain in force. National judges apply
international law that has been translated into national law.

●​ Does Bangladesh Follow a Dualist Approach?

There is no explicit constitutional provision that acknowledges a dualist
approach in the legal system of Bangladesh. However, since the British
era, the courts have followed a dualistic approach.

Article 149 of the Constitution states that, subject to the provisions of

this Constitution, all existing laws shall continue to have effect but may
be amended or repealed by law made under this Constitution. Here,
“existing law” includes pre-British law, which is incorporated into our
national law. Furthermore, judicial decisions indicate that Bangladesh is
a dualist country. However, according to Hussain and Bhuiyan, two
prominent legal scholars, customary international law automatically
forms part of Bangladeshi law as long as there is no inconsistent
domestic legal provision. Bangladeshi courts should follow the English
common law principle in this regard.

Any explanation of the relationship between Bangladesh's domestic law

and international law must be derived from the Constitution, as the
Constitution is the single source of legitimacy for the legal order in
Bangladesh.

[Article 152(1)]
 26

These terms do not include international treaties as a source of law.

Therefore, international treaties cannot be directly applied by any branch
of the government without the implementation of domestic legislation,
which is characteristic of a dualist country.

●​Law without the States

It is a concept that explains the legal systems or norms emerging and
functioning independently of the state. It challenges the traditional
understanding of law by a centralized state or government authority. It is
a law made primarily outside of the power of a state.

●​ Features
●​ Decentralization & Voluntary Participations
In systems of law without the state, authority is decentralized, with
multiple sources of legal authority rather than a single sovereign.
Participation in these systems is often voluntary and based on mutual
consent, allowing for a more flexible and consensual approach to
governance. Laws can be highly localized, adapted to the specific needs
and circumstances of the community, ensuring that legal norms are
relevant and responsive to the people they govern. This decentralization
and voluntary participation enable a more tailored and
community-specific form of legal regulation.

●​ Customary Law
Customary law is based on long-established traditions and practices
recognized by a community, with enforcement typically managed by the
community or local leaders rather than a central authority. These laws
are characterized by their flexibility, allowing them to adapt to changing
circumstances within the community. Often, customary laws are
transmitted orally rather than in written form.
 27

●​ Private Governance
In private governance, laws and rules are established through contractual
agreements between parties. Dispute resolution often relies on
arbitration and mediation rather than formal courts, allowing for a more
flexible and efficient process. Enforcement mechanisms can include
private security or reputational consequences, ensuring compliance
without state intervention. These systems can be highly specialized,
catering to the specific needs of businesses or communities, and
providing tailored solutions that a more generalized legal system might
not offer.

●​ Online Communities
In this age of digitalisation, online communities may develop their own
rules, terms of service and dispute resolution mechanisms, creating their
legal systems outside the purview of the state.

●​ Religious Law
Religious laws are derived from religious texts and believed to be
divinely ordained, providing a comprehensive moral and ethical
framework that governs all aspects of life. Enforcement and
interpretation of these laws are typically managed by religious leaders or
courts, with adherence usually being voluntary and motivated by faith
and community norms.

●​ Social Norms & Reciprocity

Divine authority and informal norms play significant roles in governing
behavior in systems without state law. Social norms are maintained
through informal mechanisms such as peer pressure and social approval,
while systems of reciprocity and mutual aid enforce these norms and
 28

help resolve disputes. Dispute resolution often involves

community-based solutions, with meetings or councils where consensus
is sought, emphasizing the role of collective agreement and cooperation
in maintaining order.

●​ Challenges & Criticisms

Some anarchist and libertarian thinkers advocate for minimal or no state
involvement in legal matters, suggesting that voluntary agreements or
private institutions can replace or supplement state-based legal systems.

However, there remains a challenge regarding enforcement,

accountability, and the protection of individual rights, as there would be
no state authority to regulate these areas, issue sanctions, or safeguard
fundamental rights. People often think that a stateless society would
descend into chaos. Anarchists typically respond that this concern both
overrates the state and understates other sources of law. While it may
seem obvious that the state is essential to prevent violence and promote
equality, some states have done a poor job of achieving these goals. This
highlights the potential desirability of a stateless, yet effective, legal
system. It is also argued that although state-based legal systems have
been failing to safeguard the vulnerable, a stateless society might turn
out to be even worse.

The following concerns are often raised regarding a stateless legal

system:

1.​ Why would people obey the legal norms of a stateless

environment?
2.​ How would the legal norms be enforced and interpreted without a
centralized institution?
 29

3.​ What would be done about competing legal systems?

The famous legal theorist H. L. A. Hart emphasized the role of social

pressure in securing compliance with legal rules rather than the threat of
punishment. He argued that people would obey legal norms in a stateless
environment because of their social obligation. A customary legal order
without formal institutions might still be widely respected by the
community if there were consistent social pressure to comply with its
rules.

Nonetheless, it is important to note that a stateless society is unlikely to

totally lack formal legal institutions. It would lack the centralized legal
institutions maintained by the state, but a range of consent-based
security and legal institutions might arise. An obvious mechanism for
resolving private disputes would be to refer both parties to a neutral
third-party arbitrator. This could plausibly result in something
functionally quite similar to a formal court hierarchy.

●​ Legal Pluralism
A stateless approach to legal institutions would have pluralistic
tendencies. Different dispute resolution services might choose to
recognize different legal rules. This refers to the co-existence and
interaction of multiple legal norms within a single society or jurisdiction.
Various legal norms can stem from sources including state law,
customary law, religious law, and international law. These legal norms
often interact and overlap, making it difficult for people to navigate
through different legal orders, each with its own set of rules and
procedures.
 30

Ancient Hindu Legal System

During the Hindu period in Ancient India, Hindu society, institutions,

and beliefs gradually developed and were given a definite shape. Many
important beliefs and doctrines of today are deeply rooted in ancient
Hindu ideology. In order to properly understand the ancient judicial
system of India, it is vital to briefly consider three important factors.

1.​Social Institution
In determining the social order two important concepts may be stated
namely, the caste system and the joint family system.

A.​Caste System
The caste system emerged in Ancient India as unique and one of the
most rigid social systems ever developed in any part of the world. Whole
society was divided into four main castes. The Brahmins were
considered to be the most superior caste. The scholars and priests of the
Hindus belonged to this caste. They had in law and in fact privileges and
prerogatives not held by other sections of Hindu society. The Kshatriyas
were the nobles and warriors and to this caste rulers of various states and
kingdoms mostly belonged. The Vaisyas were merchants and traders.
The Sudras were the workers and ranked lowest. The caste was
determined by birth and determined the pattern of life amongst Hindus
relating to their status, living. marriage, profession and social
obligations.

B.​Joint family system

The joint family system was another important institution which
determined the social order amongst Hindus in Ancient India. A family
 31

was regarded as a unit of the Hindu social system. At the head of the
family was the patriarch, whose authority was absolute over the
members of his family. He represented all the members of his family
before the law and claimed absolute obedience from them.

2.​Political System
The King, the supreme authority in ancient India, with the assistance of
his chief priest (purohita) and military commander (senani), carried on
the administration of his kingdom. Each State was divided into
provinces and those into divisions and districts, which differed in
terminology as well as in area. Village was the smallest administrative
unit. For each province and district separate governors, according to
their status, were appointed with different designations.

3.​Religious Philosophy
Religious philosophy within Hinduism is deeply rooted in the Vedic
texts, which are seen as the divine ‘law’ revealed to ancient sages
through divine revelation (sruti). This concept, known as lex natura or
lex divina, emphasizes the obligation of every being to always act in
accordance with what is right. Central to this understanding are the
concepts of Rita and Satya, which represent the invisible and visible
aspects of truth respectively. Rita encompasses the eternal truths of right
versus wrong, light versus darkness, and values versus disvalues,
providing a moral compass for individuals within Hindu society.

The concepts of Dharma and Danda play significant roles in

maintaining order and promoting self-control. Dharma, rooted in the
idealistic notion of individual self-control, emphasizes the continuous
subordination of personal desires to higher principles. On the other hand,
Danda, or assisted self-controlled order, acknowledges the inherent
 32

selfishness of individuals and the need for external reminders of

obligations to reinforce self-control. This assistance can take various
forms, including the threat of punishment (‘the stick’), dispute resolution
through informal or formal means (vyavahara), and the promotion of
good behavior (nyaya), such as the practice of sadacara, which dictates
intuitive adherence to what is right in specific circumstances. These
concepts collectively formed the foundation of a moral and orderly
society in ancient India, with the King's responsibility to maintain
Dharma by means of Danda.

●​Administration of Justice
Ancient India was divided into several independent states and the king
was the supreme authority of each state. As far as the administration of
justice is concerned the king was considered the fountain of justice.

●​ King's Court
The King’s count was the highest court of appeal in the state. It was also
a count of original jurisdiction for cases of vital importance to the state.
In the King's Court the King was advised by learned Brahmins, the
Chief Justice and other judges, ministers, elders and representatives of
the trading company.

●​ The Chief Justice’s Court

Next to the King’s Court was the Chief Justice's Court which consisted
of the Chief Justice and a board of judges to assist the chief Justice. All
the judges in the land belonged to three upper castes preferably
Brahmins.

●​ Special Tribunal
 33

Sometimes separate tribunals with specific territorial jurisdiction used to

be formed from among judges who were members of the board of the
Chief Justice's Court.

●​ Town or District Court

In towns and districts courts were run by the government officials to
administer justice under the authority of the king.

●​ Village Council
The local village councils or Kulani were constituted at village level.
This council consisted of a board of five or more members for
administration of justice to villagers. The councils dealt with petty civil
and criminal matters.

●​ Arbitration Council
The Arbitration Council, consisting of three or five arbitrators, handles
disputes among members of various trading groups.

●​Judicial Procedure
●​ Stages of a Suit
A suit or trial consisted of four stages: the plaint, the reply, the trial and
investigation and finally the verdict or decision of the court.

●​ Bench of more than One Judges

The courts were functioning on the principle that justice should not be
administered by a single judge. Generally a bench of two or more judges
would administer justice. Even the King decided cases in his council.

●​ Institution of Lawyers
 34

The Smritis do not mention a separate institution of lawyers in the

ancient Hindu judicial system. However, Kane suggests that individuals
well-versed in law and court procedures were likely appointed to
represent parties in court. The detailed procedures in texts like the
Naradasmriti, Brihaspati Smriti, and Katyayana Smriti indicate that
skilled legal assistance was often needed in litigation. Despite this, it is
clear from Kane's observations and historical evidence that the modern
organization of lawyers did not exist in ancient Hindu times.

●​ Appointment of Judges and Judicial Standard

In the appointment of the Chief Justice and other judges the question of
caste consideration played a vital role. The Chief Justice was
mandatorily appointed from Brahmins. A Sudra was forbidden to be
appointed as a judge. Appointments were made from among the persons
who were highly qualified and learned in law. Women were not allowed
to hold the office of a judge. Judges were required to take the oath of
impartiality when deciding disputes between citizens.

●​ Doctrine of Precedent
The decisions of the King's court were binding on all lower courts. The
principles of law declared by higher courts were taken into consideration
by the lower courts while deciding cases.

●​ Evidence
During the course of proceedings both the parties were required to prove
their case by producing evidence. Ordinarily, evidence was based on any
or all the three sources, namely, documents, witnesses, and the
possession of incriminating objects. In criminal cases, sometimes
circumstantial evidence was sufficient to punish the criminal or acquit
him.
 35

●​ Trial by Ordeal
Ordeal was a type of custom based on religion and faith in God. It was a
means of proof to determine the guilt of a person. The application of
trial by ordeal was limited to cases where no concrete evidence was
available on either side. This system was very painful and dangerous for
the accused, and sometimes the person undergoing the ordeal died as a
result. Some common ordeals are described below:

1.​ Ordeal by Fire

According to the Hindu myth fire is considered to be God and it has
purifying qualities. According to the ordeal of fire, the accused was
directed to walk through or stand or sit in fire for some specified time. If
the accused came out from the fire without any harm, he was considered
innocent. Sometimes the accused was asked to carry a red hot iron ball
in his hand and walk a few paces. If he had no signs of burns after the
ordeal, he was considered to be innocent.

2.​ Ordeal by water

Water, which was seen as a sign of purity under the Hindu mythology,
was used to test the guilt of the accused. The accused was required to
stand in waist-deep water and then to sit down in the water, as an archer
shot an arrow. If the accused remained in the water during the time limit,
he was held to be innocent. Alternatively the accused was required to
drink water used in bathing the idol. If he had no harmful effects within
the next fourteen days, he was declared to be innocent.

3.​ Ordeal by Poison

 36

This method was also based on the view that God protects innocent
people. The accused was required to drink poison without vomiting it. If
he survived, he was declared to be innocent.

4.​ Ordeal by Rice-grains

The accused was required to chew unhusked rice and then asked to spit
out. If blood appeared in his mouth, he was considered to be guilty,
otherwise not.

5.​ Ordeal by Lot

Two lots of the same type representing Right (Dharma) and Wrong
(Adharma) were placed in a jar. The accused was asked to draw a lot. If
the accused drew Dharma he was declared innocent.

●​ Trial by Jury
The jury system existed in ancient India but not in the same form as
understood in today's world. There is evidence that the community
members used to assist the administration of justice. They were merely
examiners of the cause of conflict and placed true facts before the judge.
The verdict was declared by the presiding judge and not by the jury.

●​ Crimes and Punishments

The philosophy of crime and punishment aimed to reform the accused
by removing impurities. Judges considered various factors, including the
motive, nature, and circumstances of the offense, and the offender's
personal attributes before deciding on punishment. There were four
methods of punishment: Gentle admonition, severe reproof, fines, and
corporal punishment, which could be used separately or combined.
Severity depended on caste, with certain groups like the elderly, young
children, women, and the diseased receiving reduced punishments.
 37

Specific crimes, such as adultery, rape, and murder, had punishments

based on caste hierarchies, with harsher penalties for offenses against
higher castes. Capital punishment for severe crimes included brutal
methods like roasting alive or trampling by elephants. Overall, the
system was arbitrary, caste-based, and lacked ethical considerations.

Judicial System in Medieval India

●​Muslims in India
In the 8th Century AD, Muhammad Bin Qasim arrived in India,
specifically targeting the Malabar coast and Sindh. During this period,
the Arabs successfully conquered the Persians, Afghans, and Turks. By
the 12th Century AD, the Hindu period was marked by mutual distrust, a
focus on comforts and luxuries, internal dissensions, and unpatriotic,
politically disunited leadership. This internal weakness made the region
vulnerable to a sudden raid by Muslims, leading to the fall of Delhi to
the Muslim commander Ghori in 1192 AD. Qutbuddin subsequently
founded the Delhi Sultanate in 1206, which included five dynasties: The
Slave Dynasty (1206-1290 AD), Khilji Dynasty (1290-1320 AD),
Tughluq Dynasty (1320-1414 AD), Sayyid Dynasty (1414-1454 AD),
and Lodi Dynasty (1451-1526 AD). After the decline of these dynasties,
the Mughals ruled from 1526 to 1857.

●​Legal System of the Sultanate of Delhi

1.​Islamic Law (Shari'ah)
Faithfulness, observance and strict adherence to Sharia were the key
features of the legal system of the Sultanate of Delhi, during its
historical period (1206–1526). The Sultanate aimed to live in accordance
 38

with the teachings of Islam to secure ends of justice and in all

circumstances, to administer justice as dictated in Shari’ah. Feroz Shah
Tughlaq (1351-1388) prepared a code of civil procedure which was
known as ‘Fiqh-e-Firoz Shahi’ where it was declared that violation to
the law of Shari’ah is completely banned. ‘Fiqh-e-Firoz Shahi’ was later
replaced by ‘Fatawa-i-Alamgiri’.

2.​Strict Implementation & Respect of the Law

Independence of Judiciary: To achieve respect for law and
dispensation of justice, Sultans appointed learned and competent persons
to judicial posts who were known as Muftis. They were also used to
assist courts, and they all were under an obligation to obey the law and
administer it according to the law of Shari’ah. Even Sultans themselves
obeyed the decisions of Courts.

3.​The Impact of Abbasside Institutions

The Sultans were greatly impressed by the Abbasids; therefore, they
established institutions, such as grades of courts, on the same pattern. It
is a well-recognized principle in Islamic law that Non-Muslims, or
Zimmis, should resolve their disputes and affairs through their own
religion, as they are not the main subject of Islamic Law. Hindus had
their own special law. Regarding criminal law, both Hindus and Muslims
were treated similarly.

4.​Overview of General Administration under Sultans

The Emperor was the Sultan himself. His election was the same as that
of Caliphs of Islam; that is to say, he was elected by leading men at the
capital.
 39

In terms of the judiciary, the Chief Justice was the sole authority. He was
known as Qazi-ul-Quzat. Sultan was introduced before the public by the
Chief Justice and other officers. The Chief justice was subordinate to the
Sultan.

The major departments include: (i) Finance, (ii) Army, (iii) General
Administration, (iv) Ecclesiastical Department, (v) Law and justice.

The executive authority of the state is exercised by the Governor in the

name of the Sultan in each province.

●​Judicial Administration under the Sultanate of

Delhi
The Sultanate's civil administration was led by the Sultan and his Chief
Minister, the Wazir. It was organized into administrative divisions
ranging from provinces to villages. Provinces, known as Subahs, were
made up of districts called Sarkars, which were further divided into
parganas. Parganas consisted of groups of villages.

●​ Court Structure during Sultanate

In Medieval India, the Sultan, as the head of the state, was the supreme
authority responsible for administering justice in his kingdom. The
administration of justice was one of the important functions of the
Sultan, carried out in his name in three capacities: Diwan-e-Qaza
(arbitrator), Diwan-e-Mazalim (head of bureaucracy), and
Diwan-e-Siasat (Commander-in-Chief of forces). The courts were
required to seek his prior approval before awarding capital punishment.
The judicial system under the Sultan was organized based on the
administrative divisions of the kingdom, with a systematic classification
and gradation of courts at the capital, in provinces, districts, parganas,
 40

and villages. The powers and jurisdiction of each court were clearly
defined.

A.​Central capital
Six courts which were established at the capital of the Sultanate, may be
stated as follows: The King's Court, Diwan-e-Mazalim, Diwan-e-Risalat,
Sadre Jahan's court, Chief Justice's Court and Diwan-e-Siasat.

The King’s Court: The King's Court, presided over by the Sultan,
exercised both original and appellate jurisdiction on all kinds of cases. It
was the highest court of appeal in the realm. The Sultan was assisted by
two reputed Muftis highly qualified in law.

Diwan-e-Mazalim: The court of Diwan-e-Mazalim was the highest

court of criminal appeal.

Diwan-e-Risalat: The court of Diwan-e-Risalat was the highest court of

civil appeal.

Though the Sultan nominally presided over these two abovementioned

courts, he seldom sat in them. The Chief Justice was the highest judicial
officer next to the Sultan. From 1206 to 1248 in the absence of the
Sultan, the Chief Justice presided over these courts.

Sadre Jahan’s Court: In 1248 Sultan Nasir-ud-Din, being dissatisfied

with the then Chief Justice, created a superior post of Sadre Jahan and
appointed Qazi Minhaj Siraj to this post. Since then Sadre Jahan became
de facto head of the judiciary. The Court of Ecclesiastical cases, which
was under the Chief Justice up to 1248, was also transferred to the Sadre
Jahan and later on became popular as Sadre Jahan's court. Sadre Jahan
 41

became more powerful and occasionally presided over the King's Court.
The offices of the Sadre Jahan and Chief Justice remained separate for a
long time. Ala-ud-din amalgamated the two. They were again separated
by Sultan Firoz Tughlaq.

Diwan-e-Siasat: The court of Diwan-e-Siasat was constituted to deal

with the case of rebels and those charged with high treason. Its main
purpose was to deal with criminal prosecutions. It was established by
Mohammed-bin-Tughlaq and continued up to 1351.

The Chief Justice’s Court: The Chief Justice's court was established in
1206. It was presided over by the Chief Justice (Qazi-ul-Quzat). It dealt
with all kinds of cases. Earlier, The Chief Justice was the higher judicial
officer but with the creation of a new post of Sadre Jahan, its importance
was reduced for some time. The Chief Justice and puisne judges were
men of ability (Afazil-e-Razgar) and were highly respected. Many Chief
Justices were famous for their impartiality and independent character
during the Sultanate period.

●​ Officers of the Court

There were four officers in the Court, namely Mufti, Pandit,
Mohtasib and Dadbak.

●​ Mufti: He was selected by the Chief Justice and appointed

by the Sultan. He acted as legal expert and in case of
difference of opinion between the mufti and judge, the
difference was referred to the Sultan for decision.
 42

●​ Pandit: He was a Brahmin learned in law of Hindu and he

acted as expert of law in civil cases of non-Muslims and his
position was similar to the Mufti.

●​ Mohtasib: He was entrusted with the prosecution for the

violation of canon law.

●​ Dadbak: He was the registrar or the clerk of the court and

his duty was to ensure attendance of persons summoned by
the court. Sometimes he was also entrusted with the task of
trying petty civil cases.

B.​Courts at the Provinces

In each province (Subah), headed by a governor (Subedar), four courts
were established at the provincial headquarters: Adalat Nazım-e-Subah,
Adalat Qazi-e-Subah, Diwan-e-Subah, and Sadre-e-Subah.

Adalat Nazim-e-Subah: This court was presided over by the Nazim. In

the Province, the Sultan was represented by him, and like the Sultan, he
exercised both original and appellate jurisdiction. In original cases, he
usually sat as a single judge. From his judgment, an appeal lay to the
Central Appeal Court at Delhi. While exercising appellate jurisdiction,
the Nazim sat with the Qazi-e-Subah, constituting a Bench to hear
appeals. From the decision of this Bench, a final second appeal lay
before the Central Court at Delhi.

Adalat Qazi-e-Subah: This court was presided over by the Chief Qazi
of the Province. This court tried all cases of civil and criminal matters. It
also heard appeals from the courts of District Qazis. Appeals from this
court lay to the Adalat Nazim-e-Subah. This court also had the
 43

supervisory jurisdiction over the administration of justice in his province

and to see that the Qazis in districts were properly functioning.
Qazi-e-Subah was appointed by the Sultan, but selected by the Chief
Justice amongst persons who had established a reputation for learning
and scholarship of law, possessed a high character and was a man of
unimpeachable integrity. Four officers namely Mufti, Pandit, Mohtasib
and Dadbak were attached with this court too.

Diwan-e-Subah: This court had both original and appellate jurisdiction

in all revenue matters. It had the final authority in the Province over all
cases concerning revenue.

Sadre-e-Subah: This was the Chief Ecclesiastical court in the province.

This court dealt with the matters relating to grant of stipend. lands etc.

C.​District Courts
In each District, at the District Headquarter, following courts were
established:

The Court of District Quazi: This court had the jurisdiction to try all
civil and criminal matters. It also heard appeals from the decisions of the
Parganah Qazis and Kotwals. This court was presided over by the Qazi
who was appointed by the Sadre Jahan on the recommendation of the
Qazi-e-Subah. This court was also assisted by the same four officials as
mentioned above.

Faujder Court: This court had jurisdiction to try petty criminal cases
concerning security and suspected criminals. Appeal from this court lay
with the court of Nazim-e-Subah.
 44

Court of Amils: This court dealt with land revenue matters. Appeal
from this court lay before the Court of Diwan-e-Subah.

Court of Dadbak or Mir Adils: This Court exercised similar

jurisdiction as to the Court of Amils.

The Court of Sadr: The court of Sadr dealt with cases concerning grant
of land and registration of land. Appeals were allowed to be filed before
the Sadre-e-Subah.

Court of Kotwals: This court was authorized to decide petty criminal

cases and police cases within the municipality of town.

D.​Courts at Parganah
At each pargana headquarters two courts were established, namely,
Quazi-e-Parganah and Kotwal.

Quazi-e-Parganah: The court of Qazi-e-Parganah had all the powers of

a District Qazi in all civil and criminal cases except hearing appeals.
Canon law cases were also filed before this court.

Court of Kotwals: Petty criminal cases were filed before the Kotwal.
He was the Principal Executive Officer in towns.

E.​Village Court
A pargana was divided into a group of villages.

Village Assembly or Panchayat: For each group of villages there was a

village assembly or panchayat, a body of five leading men to look after
the executive and judicial affairs. The Sarpanch or Chairman was
 45

appointed by the Nazim or the Faujdar. The panchayats decided civil and
criminal cases of a purely local character. Though the decrees given by
the panchayats were based on local customs and were not strictly
according to the law of the kingdom still there was no interference in the
working of the panchayats. As a general rule, the decision of the
panchayat was binding upon the parties and no appeal was allowed from
its decision.

●​ Appointment of Judges & Judicial Standard

During the Sultanate period, judges were appointed by the Sultan based
on their high level of legal expertise and moral integrity. The Chief
Justice and other judges were selected from among the most virtuous
and knowledgeable individuals in the kingdom. They were highly
respected in society and known for their impartiality. However, if judges
were found to be corrupt or incompetent, they were removed from their
positions, even the Chief Justice could be demoted. This system ensured
that justice was administered fairly and efficiently, with unpopular or
corrupt judges facing public backlash and dismissal.

●​Judicial Reforms of Sher Shah

In 1540, Sher Shah established the Sur dynasty in India after defeating
the Mughal Emperor Humayun. During the Sur dynasty's reign from
1540 to 1555, under Sher Shah and later Islam Shah, the Mughal Empire
was temporarily overshadowed. Sher Shah was renowned for his
military prowess and administrative and judicial skills. He believed that
justice was crucial for a stable government and implemented significant
reforms during his short five-year rule. His reforms included setting up
separate civil and criminal courts in parganas, appointing Moqoddams to
prevent theft, establishing police regulations, specifying the duties of
judicial officers, emphasizing the responsibilities of governors in
 46

maintaining law and order, and allowing the Chief Qazi to report directly
to the Emperor in cases of governor misconduct.

●​Judicial Administration under the Mughal Period

The Mughal period in India began with Babur's victory in 1526 over the
last Lodi Sultan of Delhi. Although Humayun temporarily lost his
kingdom to Sher Shah in 1540, he regained it in July 1555. The Mughal
Empire lasted from 1555 to 1750. The administrative divisions of the
empire were based on those established during the reign of Sher Shah,
including provinces, districts, parganas, and villages. Similar to the
Sultans of Delhi, the Mughal Emperors were absolute monarchs, holding
supreme authority over executive, legislative, judicial, and military
matters.

●​ Administration of Justice
During the Mughal period (1526-1857) the Mughal Emperor was
considered the 'fountain of justice’. The emperor created a separate
department of justice (Mahakuma-e-Adalat) to regulate and see that
justice was administered properly.

●​ Courts at Capital
Three important courts were functioning at the capital city (Darul
Sultanat) of Delhi. They were as follows:

The Emperor's Court: The Emperor's court, presided over by the

Emperor himself, was the highest court of the empire. This court had
jurisdiction to hear both civil and criminal cases. While exercising
original jurisdiction, the Emperor was assisted by the Daroga-e-Adalat,
Mufti, and Mir Adil. When hearing an appeal, the Emperor presided
over a bench consisting of the Chief Justice (Qazi-ul-Quzat) and other
 47

Qazis of the Chief Justice's court. The Emperor referred points regarding
authoritative interpretation of law on a particular issue to the Chief
Justice's court for an opinion.

The Court of Chief Justice: This was the second important court at the
capital. This court presided over by the Chief Justice was assisted by two
Qazies of great importance who were attached to this court as puisne
judges. This court had jurisdiction to try original, civil and criminal
cases and also to hear appeals from the Provincial courts. It had also
supervisory power over the working of the Provincial courts.

Chief Revenue Court: This was the third important court in Delhi. It
was the highest court of appeal to decide revenue cases. The Court was
presided over by the Diwan-e-Ala.

In each court, as stated above, four officials were attached:

Daroga-e-Adalat, mufti, Muhtasib and Mir Adil. The Mufti attached to
the Chief Justice’s Court was known as Mufti-e-Azam.

Apart from the above-stated three important courts, there were also two
courts in Delhi. The court of Qazi-e-Askar was a special court to decide
military matters. This court moved from place to place with troops.
Another court was the court of Qazi of Delhi which sat in the absence of
the Qazi-ul-Quzat to decide local civil and criminal matters.

●​ Provincial Courts
In each Province there were following three types of courts:

The Governor's Court (Adalat-e-Nazim-e-Subah): The Governor or

Nazim presided over this court and he had original jurisdiction in all
 48

cases arising in the Province. This court had also jurisdiction to hear
appeals from the subordinate courts. Further appeal from this court lay
to the Emperor's court. This court had also supervisory power over the
administration of justice in the Province. One Mufti and a
Daroga-e-Adalat were attached to this court.

The Provincial Chief Appeal Court (Qazi-e-Subah's Court): This

court heard appeals from the decisions of the Qazis of the districts. The
powers of Qazi-i-subah were co-extensive with those of Governors. This
court had original civil and criminal jurisdiction as well. The officers
attached to this court were: Mufti, Mohtasib, Daroga-e-Adalat-e-Subah,
Mir Adil, Pandit, Sawaneh Nawis and Waqae Nigar.

Provincial Chief Revenue Court (Diwan's Court): This court,

presided over by Diwan-e-Subah, had original and appellate jurisdiction
in all revenue matters. An appeal from this court lay to the Diwan-e-Ala
at the Imperial capital. Four officers were attached to this court: the
Peshker, the Daroga, the Treasurer, and the Cashier.

●​ District Courts
In each district there were following four courts:

District Qazi: The chief civil and criminal court of the district was
presided over by the Qazi-e-Sarkar. This court had jurisdiction over all
civil and criminal matters. Appeals from this court were made to the
Qazi-e-Subah. The Qazi-e-Sarkar was the principal judicial officer in the
district. Six officers were attached to this court: the Darogha-e-Adalat,
Mir Adil, Mufti, Pandit, Mohtasib, and Vakil-e-Sharayat.
 49

Faujdar Adalat: This court presided over by a Faujdar had jurisdiction

to try cases concerning riots and state security. An appeal lay to the court
of Governor from the decisions of this court.

Kotwali Court: This court, presided over by a Kotwal-e-Shahar,

decided all petty criminal cases. Appeals from this court lay to the
Qazi-e-Sarker.

Amalguzari Kachari: This court presided over by an Amalguzar

decided revenue matters. An appeal from this court lay to
Diwan-e-Subah's adalat.

●​ Parganah's Court
In each Parganah there were three courts:

Qazi-e-Parganah's Court: This court had jurisdiction over all civil and
criminal cases arising within its original jurisdiction. This court had no
appellate jurisdiction. Appeal from this court lay to the court of District
Qazi.

Court of Kotwal: This court decided all petty criminal cases. Appeals
from this courts' decision lay to the Court of District Qazi.

Amin-e-Parganah: This court presided over by an Amin, decided all

revenue matters. An appeal from this court lay to the District Amalguzar.

●​ Village Courts
In each village, two types of courts were operational: The court of the
village panchayat and the court of the Zamindar. The village panchayat
consisted of five persons, led by a headman. The panchayat had the
 50

authority to decide on minor local civil and criminal matters, and no

appeal was permitted from its decisions. During the late Mughal period,
the courts of Zamindars were also empowered to handle minor criminal
and civil cases.

●​ Judicial Procedure
During the Muslim period, courts followed a systematic judicial
procedure regulated by the Fiqh-e-Firoz Shahi and Fatawa-i-Alamgiri
codes. The court's status was determined by the kingdom's political
divisions.

In civil cases, the plaintiff or their agent filed a complaint in a court with
appropriate jurisdiction. The defendant was summoned to accept or deny
the claim. If denied, issues were framed, and both parties presented
evidence and witnesses, who were cross-examined. The judgment was
delivered in open court after evaluating all evidence.

In criminal cases, complaints were presented either personally or

through a representative. A public prosecutor, the Mohtasib, handled
prosecutions. The court could call the accused immediately or first hear
the complainant's evidence. Judgments were usually given in open court,
except in sensitive cases.

Evidence was categorized by Hanafi law into three types: tawatur (full
corroboration), ihad (single testimony), and iqrar (admission/
confession). The court preferred tawatur. All believers in God were
competent witnesses, with oaths administered to all. Women could
testify, but two women were required to match the testimony of one
man, except in cases where women's specific knowledge was relevant.
 51

The principles of estoppel and res judicata were also recognized in the
Muslim period.

●​ Appointment of Judges & Judicial Standard

During the Mughal period, judges, including the Chief Justice, were
appointed by the Emperor based on their scholarly qualifications and
reputation for honesty. Judges were often chosen from among eminent
lawyers, with a focus on maintaining high standards of integrity and
impartiality. Corrupt judges were punished, and strict instructions were
given to maintain fairness and avoid corruption, including refraining
from accepting gifts or attending entertainments. The Emperors,
especially Emperor Aurangzeb emphasized the importance of justice,
honesty, and impartiality in judicial proceedings.

●​ Institution of Lawyers
During the Mediaeval Muslim period, litigants were represented in
courts by professional legal experts known as vakils. Although there was
no formal institution like today's Bar Association, lawyers played a
significant role in administering justice. The duties of a vakil were
outlined in Muslim Indian Codes such as Fiqh-e-Firoz Shahi and
Fatwa-e-Alamgiri. Historical sources, including Ibn Batuta's writings,
confirm the presence of vakils during this period. Government advocates
were first appointed during Shah Jahan's reign, and full-time lawyers,
known as Vakil-e-Sarkar or Vakil-e-Shara, were appointed in every
district during Aurangzeb's rule. They provided legal assistance to both
the state and poor litigants, maintaining high standards of legal
knowledge and conduct.

●​ Trial by Ordeal
 52

Trial by ordeal, a method used to determine guilt, was not favored by

Muslim rulers in India. It was primarily used during the ancient Hindu
period and persisted in non-Muslim states under Sultan and Mughal
protection. Sultan Jalal-ud-Din Khilji and Emperor Akbar attempted to
adopt trial by ordeal, but faced opposition from the Muslim law experts.
Eventually, the system fell into disuse due to the influence of Muslim
law in India.

●​ Crime & Punishment

During the Muslim period, Islamic Law, or Sharia, guided all Sultans
and Mughal Emperors. It was based on principles from the Koran,
focusing on maintaining public and private rights. Three forms of
punishment were recognized: hadd, tazir, and qisas. Hadd imposed
fixed punishments for crimes like theft and apostasy, while tazir allowed
courts discretion in punishing lesser offenses. Qisas, or blood-fine,
applied in homicide cases, with the court having discretion to compound
the cases. Treason was deemed a crime against God and the State, often
resulting in death penalties. Contempt of court was also severely
punished.

●​Defects of Muslim Administration of Justice

The Muslim administration of justice, particularly the criminal justice
system in medieval India, suffered from many defects. The British
people who gradually took over the administration of justice in India
always regarded the Muslim criminal law with skepticism. Warren
Hastings declared it to be a more barbarous law than any other. The
inherent defects of the Muslim administration of justice were as follows:

1.​ The judicial administration was defective in the sense that there
was no separation between the executive and judiciary. The
 53

emperor, who was the head of the government, was also the
fountain of justice and administered justice directly.

2.​ In many cases, Muslim criminal law was not certain or uniform. In
practice, it was discovered that the law laid down in Hidaya and
Fatwa-e-Alamgiri was often conflicting. There were differences of
opinion among Muslim jurists, which gave the Qazis a good deal
of leeway to interpret the law and apply it to the specific facts
before them. Thus, in each case, the interpretation of the law
depended on the Qazi.

3.​ Muslim criminal law did not draw any distinction between public
law and private law. Criminal law was regarded as a branch of
private law. It had not developed the idea that crime was an offence
not only against the injured individual but also against society.

4.​ Muslim criminal law suffered from much illogicality. This is

because crimes against God were regarded as crimes of an
atrocious character, whereas crimes against men were regarded as
crimes of a private nature, with punishment considered a private
right of the aggrieved party.

5.​ The most defective provision in Muslim criminal law was the
provision of Diya. In many cases, the murderer escaped simply by
paying money to the dependants of the murdered person. Many
evil practices developed out of this provision.

6.​ In cases where a murdered person left no heirs to punish the

murderer or to demand blood-money, no specific provisions were
available in Muslim law. A minor heir was required to wait until he
 54

attained majority to punish the murderer or demand the

blood-money.

7.​ Though Muslim law tried to distinguish between murder and

culpable homicide, it did not rest on the intention or lack of
intention of the culprit. Instead, it relied on the method and
weapons employed in committing the crime. This was peculiar and
generated grave injustice.

8.​ The law of tazir, which provided for discretionary punishment,

was also very vague, giving too much power to the judges. On one
hand, innocent persons were sometimes punished by the courts,
while on the other hand, it led to corruption and injustice.
Punishment could be unduly severe or ridiculously light, as there
was no standard or measure for them.

9.​ The law of evidence under Muslim law was very defective,
unsatisfactory, and of a primitive nature, which made the
conviction of offenders quite difficult. For example, no Muslim
could be given capital punishment based on the evidence of an
infidel. In other cases, the evidence of one Muslim was regarded as
being equivalent to that of two Hindus. The evidence of two
women was regarded as being equal to that of one man.
Furthermore, evidence had 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 the very act of committing the offence.
A thief would be convicted only on the evidence of two men, or of
one man and two women. It was an invariable rule to exclude the
evidence of women in all cases under hadd or qisas.
 55

10.​ The nature of punishments such as stoning and mutilation was

so cruel and inhuman that no person of flesh and blood could even
think of them in a civilized society. The punishment of mutilation
meant a slow, cruel, and lingering death for the unfortunate person
who had to undergo it, as he could not adopt any means of
livelihood. The manner of execution was enough to give one
goosebumps. The culprit was tied down, and the executioner took a
blunt hatchet and hacked off the hand at the wrist joint and the foot
at the ankle joint. The bleeding stump was immediately immersed
in a pot of boiling butter (ghee) to stop the bleeding.

Judicial System during British Period

●​Europeans in India
Around the end of the 15th century, some European nations came to
India as trading merchants. In 1498, Vasco da Gama, a Portuguese
explorer, landed at Calicut on the Malabar Coast. During the second half
of the 16th century, the Protestant nations of Western Europe, inspired
by the Reformation movement and defying the Papal allocation of the
East to Portugal, began to compete for trade with India. The Dutch were
the first to enter the field, followed by English merchants. The Danes
came next, but they were few in number. Although the French made
earlier voyages to India, the foundations of French trade were laid by
Colbert only in the middle of the 17th century.
The power of the Mughal Emperors was at its zenith when the
Europeans first established trade centers in India. In the 17th century, the
purely commercial attitude of foreign traders suited the conditions
prevailing in India. However, with the weakening of Mughal power in
 56

the 18th century, nobles and chiefs began establishing separate

kingdoms, and the English and French companies, leveraging their
increased strength, started taking sides in the wars among the local
kingdoms. The English East India Company (EIC) finally emerged
victorious, expanded its area of influence, and eventually established its
empire in India.

●​The East India Company

In 1601, English merchants established the London East India Company
to trade with the East Indies, granted by Queen Elizabeth I. The
company had exclusive trading privileges and legislative powers for its
governance. Initially focused on trade, the company's authority later
expanded to administer territorial control in India. The company
operated until its abolition in 1857.

●​Evolution of Judicial Authority in the Early EIC

(1600-1623)
In 1609, James I granted a new charter to the East India Company,
extending its privileges indefinitely but allowing for withdrawal with
three years' notice. The Company was also given the authority to
maintain its existing privileges from Queen Elizabeth's charter of 1600.
To address disciplinary issues during voyages, the Company received its
first Royal Commission in 1601, later expanded in 1615 to include the
power to punish capital offenses through jury trials of its own servants.
Additional powers, including the enforcement of martial law, were
granted in the 1623 charter. The Company exercised its judicial authority
in trials such as that of Gregory Lellington in 1616, who confessed to
and was sentenced to death for the murder of Henry Barton in Surat,
 57

India. This incident marks an early instance of trial jurisdiction under the
Company's rule.

●​Treaty with Emperor Jahangir

In the early 17th century, the English established a presence in India,
initially settling in Surat in 1612. Seeking to strengthen their position,
they reached out to the Mughal Emperor Jahangir. Sir Thomas Roe,
representing James I, succeeded in securing a treaty with the Emperor in
1618, granting the English Company significant privileges, including the
right of self-government and the ability to resolve disputes among their
own servants. Under this arrangement, English residents in India lived
under a dual legal system, with some matters governed by Indian law
and others by English law. The English Company's officials in Surat
served as both executive and judicial authorities, often applying their
own notions of justice rather than strict English legal principles. They
also exploited the local judiciary to their advantage, benefiting from
corrupt practices in the Indian courts.

●​Charters of 1635, 1657 & 1661

In 1635, Charles I allowed Sir William Courten to create Courten's
Association for trading with the East Indies, posing competition to the
existing East India Company. This led to challenges for the old
Company, including ongoing difficulties in England until 1657.

In 1657, Oliver Cromwell granted a new Charter which amalgamated the

various joint stocks into one joint stock. The Charter also ended the old
rivalry between the Courten's Association and the old Company by
uniting them into one. In fact, the Charter of 1657 changed the very
character of the Company.
 58

During the reign of Charles II, the East India Company experienced a
period of significant growth and prosperity. In 1661, Charles II granted
the Company a new Charter, which reorganized its structure and
expanded its privileges. The Charter introduced a joint-stock principle,
strengthened the Company's control over its territories, and authorized
the appointment of Governors and other administrators. Additionally, it
gave the Company the power to administer civil and criminal justice
according to English law in its trading centers.

●​ Legislative Power of the Company

The first Charter of 1600 granted the East India Company limited
legislative power, subject to English law and reasonableness. This
marked the beginning of a new legal system. However, the Charter of
1661 expanded the Company's authority, applying English laws in India
and establishing a government for the territory. Unlike the 1600 Charter,
which focused on maintaining discipline among Company servants, the
1661 Charter aimed to develop a judicial system and governance for the
locality. Both charters favored English rights over Indian interests, with
the 1661 Charter granting extensive powers, including the ability to
administer all punishments, including death penalty, based on English
law.

●​Subsequent Charters: Transition from a Trading

Body to a Territorial Power
A.​Charter of 1668
The Charter of 1668 marked a significant shift for the East India
Company, as it granted the company authority over the island of
Bombay. Under this charter, the company was authorized to create laws
and establish courts for the governance and administration of the island.
 59

B.​Charter of 1683
The Charter of 1683, granted by Charles II, gave the East India
Company the authority to raise military forces and establish courts of
judicature. These courts, consisting of individuals appointed by the
Company, were tasked with deciding cases based on equity, good
conscience, and merchant customs. Additionally, the Company was
permitted to establish Admiralty Courts at locations of its choosing.

C.​Charter of 1686
In 1686, James II granted the East India Company additional powers
through a renewed charter, allowing them to appoint naval officers, raise
naval forces, coin money, establish Admiralty Courts, and set up a
municipality and Mayor's Court in Madras. Under Sir Josiah Child's
leadership, the Company aimed to establish a strong English dominion
in India by creating a robust civil and military infrastructure and
securing a large revenue base. This extended the constitutional
government of the Company to its territories in India.

D.​New Company of 1693: General Society

The success of the old East India Company sparked jealousy in England,
leading to the establishment of a new company in 1693 by the Whigs to
challenge its monopoly. This new entity, known as the “General
Society”, gained statutory recognition in 1698. However, this led to
intense rivalry and conflict between the two companies. To resolve these
disputes, Lord Godolphin issued a significant decree in 1708, equalizing
their capital and settling other related issues. As a result, both companies
were merged into a single entity called “The United Company of
Merchants Trading to the East Indies”.
 60

E.​Charter of 1698
In 1698, William III granted a Charter to the East India Company,
introducing changes to improve its administration. This included the
establishment of a Court of Directors and entrusting authority to the
Court of Proprietors. These structures remained until the Regulation Act
of 1773, which completely revamped the Company's constitution.

●​Company's Settlement in India

During the 17th century, the English Company established a strong
presence in India through three factories and settlements in Bombay,
Madras, and Calcutta. The Company exercised its authority through
different means in each of these settlements, either as the representative
of the English Crown, through grants from local rulers, or under the
Mughal Emperor's grant of zamindari. While the Company claimed to be
solely a trading company, its actions paved the way for the British
Parliament's adoption of a new policy towards India in the 18th century,
leading eventually to the establishment of the British Empire in India.

●​ Establishment of Presidencies
●​ Madras
On 22 July 1639, Francis Day acquired land from the Hindu raja of
Chandragiri for the East India Company, naming it Madraspatnam. In
1640, Day built Fort St. George there, which housed the Company's
factory and its employees, known as “White Town”, while the nearby
village of native Indians was called “Black Town”. This marked the
founding of Madras by Francis Day. The raja granted the Company the
authority to mint money and govern Madraspatnam. As a result of the
English traders' efforts, trade and commerce flourished, and neighboring
villages also developed. The raja further extended additional privileges
to the Company.
 61

●​ Bombay
Bombay's political situation differed from Madras. The Portuguese
acquired Bombay from Sultan Bahadurshah in 1534 and controlled it
until 1661, when King Alfonsus VI of Portugal gave it to King Charles
II of England as part of a dowry for his sister, Princess Catherine.
Finding Bombay economically unprofitable and hard to manage from
England, Charles II transferred it to the East India Company in 1668 for
an annual rent of £10. The 1668 Charter allowed the Company to
legislate and exercise judicial authority in Bombay, with laws required to
align with English laws. Sir George Oxenden received orders to
establish an executive government in Bombay under a Deputy Governor
and Council in September 1668. Although Oxenden visited Bombay in
January 1669, the laws took effect after his death in July 1669. Thomas
Papillon drafted these laws, later revised by the Court of Committees
and the Solicitor General, and they were brought to Bombay by Gerald
Aungier, the Governor of Surat, in 1670.

●​ Calcutta
The English Company's settlement at Calcutta differed significantly
from those in Madras and Bombay. On 24 August 1690, the English East
India Company built Fort William by the River Hooghly in Bengal. In
1698, Prince Azim-us-Shan granted the Company zamindari rights over
three villages: Calcutta, Sutanati, and Govindpur. This allowed the
Company to exercise powers similar to those of native Zamindars under
the Mughal system, appointing a Collector to administer these villages
and hold civil and criminal courts. Initially, prisoners had to be sent to
Madras for trial, as some privileges were withheld by the Emperor. In
1699, Calcutta's status was elevated to a Presidency, granting its
Governor and Council full administrative and judicial powers. The
 62

Company thus gained substantial legal and constitutional status, akin to

a Zamindar, due to the Mughal Emperor's political shortsightedness in
trusting the merchants.

●​The Surat Factory

The British East India Company started as a small factory in India, but
eventually grew to subjugate the entire country. The company was
granted a veritable empire within an empire, with the Mughal Emperor
ordering the Qazis to protect and aid them. The Englishmen sought to be
governed by their own laws, rather than the personal and religious laws
of the Hindus and Muslims in India. The Mughal Emperor granted them
the right of self-government and exemption from local courts. The
British administration of justice according to English Law had a
profound effect on the growth of the Indian legal system. However,
justice was administered in a summary manner and hardly any law was
actually enforced.

According to Kaye, the Englishmen in India initially governed

themselves based on power and passion instead of justice and reason.
One reason for this was that those who administered justice had no
knowledge of the law and did not belong to high social strata.
Additionally, they lacked moral values and were pragmatic in their
dealings. As a result, the Englishmen often took matters into their own
hands instead of resorting to local courts. One example of this is when
the Governor of Surat beheaded a group of dancing girls who refused to
appear before him. The Surat factory had no contribution to the
development of the administration of justice, and its importance declined
after the establishment was transferred to Bombay in 1687.
 63

●​Early Administration of Justice until the Charter

of 1726
This period marks the beginning of British involvement in the
administration of justice in India. In another sense, it highlights the
intervention of the Company in the administration of justice in India, as
opposed to intervention by the British Crown. The East India Company
gradually took possession of three factories and settlements in Bombay,
Madras, and Calcutta. Starting as trading stations, these settlements
became known as the Presidency Towns, and the territories around them
came to be known as Mufassil. Until 1726, the administration of justice
in the three Presidency Towns was haphazard. The Company
participated in the administration of justice in cooperation with the local
Mughal authorities.

Some changes were brought about in the administration of justice in the

three Presidency Towns through various Charters issued by the
Company, though these changes were minor and varied among the
towns. For example, the first Mayor's Court in India was established in
Madras by the Company's Charter of 1687. This was a Company court
as opposed to a Crown court, and no specific rules of law and procedure
were laid down for this court by the Company. On the other hand, the
Company first acquired the territories of Bengal, Bihar, and Orissa in
1765 as Mufassil areas, distinct from the Presidency Towns. Although
the Company took full control of revenue collection (Diwani) and
military power, the administration of both civil and criminal justice
remained under the indigenous machinery managed by natives until
1772.
 64

●​Second Period: The Era of the Mayor’s Court:

Administration of Justice from the Charter of
1726 till the Regulating Act of 1773
This period may be divided into two parts: From the Charter of 1726 till
the Charter of 1753; and from the Charter of 1753 till the Regulating Act
of 1773. The first part of this period marks the beginning of the
intervention by the British Crown in the administration of justice in
India.

●​ The Administration of Justice under the Charter of

1726
The Charter of 1726 issued by King George I by way of granting Letters
Patent to the Company was the first gateway of the introduction of
English law in India. The Charter of 1726 established a corporation for
each Presidency town. Following changes in the administration of
justice were made by this Charter:

●​ Civil Judiciary
A Mayor's court was established in each Presidency town. Unlike earlier,
this Mayor's court was a Crown's court, i.e., the court of the King of
England. These courts consisted of the Mayor and nine aldermen. In
British India, the Mayor's court was declared to be a Court of Record
and thus had the power to punish persons for contempt. These courts
were royal courts in the true sense, as they derived their authority not
from the company but from the British Crown.

The Mayor's court had jurisdiction to try, hear, and determine all civil
suits arising within the Presidency town and its subordinate factories.
 65

Appeal was allowed to the Governor-in-Council from the decision of the

Mayor's court.

From the decision of the Governor-in-Council, a second appeal lay with

the Privy Council in England in cases where the sum involved was either
1000 pagodas or more. This was the first time that a right of appeal to
the Privy Council (King-in-Council) from the decision of the courts in
India was created and thus was established as a bridge between the
English and Indian legal systems. Thus, the King of England was made
the ultimate fountain of justice for litigation in India.

Though the Charter of 1726 did not expressly state that the law to be
applied by the Mayor's court was to be the law of England, the Privy
Council decided that the Charter introduced into the Presidency towns
the law of England - both common law and statute law - and the Mayor's
courts were to be courts of English law.

●​ Criminal Judiciary
a.​ Justices of the Peace
Under the Charter, criminal justice was fully executive-dominated. In
each Presidency town, criminal justice was vested in the Governor and
five senior members of the Council of the Company. Each of them was
empowered to act in the same manner and wield the same powers as
justices of the peace in England. A Justice of the peace could arrest
persons accused of committing crimes, punish those guilty of minor
offenses, and commit the rest to be tried by the Quarter Sessions.

b.​ Court of Quarter Session

Three justices of the peace collectively were to form a court of record
and they were to hold quarter sessions four times a year to try and
 66

punish each and every criminal offense, except high treason, committed
in the Presidency Towns. Trial at these session courts was to be held
with the help of grand jury and petit jury. All technical forms and
procedures of English criminal justice were introduced in the Presidency
Towns as it was explicitly laid down in the Charter.

c.​ Governor-in-Council
Under the Charter criminal justice was vested in the Governor and five
senior members of the Council of the Company. They had both original
and appellate jurisdiction in some specified criminal matters, e.g. high
treason and serious crimes like murder etc.

Civil Judiciary Criminal Judiciary

Privy Council Governor-in-Council

↑ ↑
Governor-in-Council Court of Quarter Session
↑ ↑
Mayor's Court Justices of the Peace

●​ Defects of the Judicial System under the Charter of

1726
1.​ The criminal justice system was fully dominated by the executive
branch, as it was under the control of the Governor-in-Council.
The Mayor's courts were also not free from executive influence.
The aldermen were either servants of the East India Company or
other English traders who relied on the Company's permission to
remain in India and were subject to the decisions of the local
government. In other words, the Governor and Council had the
power to appoint and remove judges.
 67

2.​ Judges were non-professionals. The Company had a policy of

confining administration of justice to its servants and hence it
avoided appointing lawyers.

3.​ The Mayor's court was established to operate independently.

However, its relationship with the executive was not clearly
defined, leading to an unfortunate clash between the executive and
the judiciary. This conflict is evident in significant cases such as
Shrimpy's Case, Arab Merchant's Case, and the Pagoda Oath Case.

4.​ The Charter did not mention anything about the jurisdiction of the
Mayor's court. When the Mayor's court claimed authority to
adjudicate cases involving native Indians, it caused significant
dissatisfaction and unrest among the native population.

●​ The Administration of Justice under the Charter of

1753
The period begins with the Charter of 1753, issued by King George II to
address deficiencies stemming from the previous Charter of 1726. The
reforms introduced by this Charter were as follows:

a.​ All suits and actions involving only natives were excluded from
the jurisdiction of the Mayor's court unless both parties involved in
the matter submitted it for the court's decision.

b.​ The Mayor's court was made completely subordinate to the

Government of the Company through changes in the appointment
of the Mayor and aldermen.
 68

c.​ A new court, known as the Court of Requests, was established at

each Presidency Town. Its purpose was to provide inexpensive,
swift resolution for cases involving amounts up to 5 pagodas or Rs.
15. This initiative aimed to assist economically disadvantaged
litigants with small claims who could not afford access to the
Mayor's court.

Civil Judiciary Criminal Judiciary

Privy Council Governor-in-Council

↑ ↑
Governor-in-Council Court of Quarter Session
↑ ↑
Mayor's Court Justices of the Peace
↑
Court of Requests

●​ Further Explanation
1.​ The Privy Council had only appellate jurisdiction.
2.​ The Court of the Governor-in-Council had both civil and criminal
jurisdiction. For criminal matters, it had both appellate and original
jurisdiction. For civil matters, it had appellate jurisdiction only.
3.​ The Mayor's Court heard civil cases involving more than 5
pagodas, one for each Presidency Town.
4.​ The Court of Requests heard civil suits up to 5 pagodas, one for
each Presidency Town.

●​ Defects of the Judicial System under the Charter of

1753
 69

1.​ The Charter made the judicial machinery a branch of the

Company's executive, with the judiciary being manned by the
servants of the Company.
2.​ The judges were ignorant of the law, especially the
Governor-in-Council, who lacked knowledge of the technicalities
of English criminal law, which they were expected to apply in
India.
3.​ The appeal system to the Kings-in-Council was difficult and
expensive.
4.​ Indians were excluded from any participation in the administration
of justice.
5.​ The criminal justice system, controlled by the Governor and
Council, was seen as a political farce.

●​The Era of the Supreme Court: Administration of

Justice from the Regulating Act of 1773 till the
Era of Unification in 1861
Though the Charter of 1753 was issued with a view to removing the
defects of the Charter of 1726, the Mayor's Court suffered from certain
drawbacks having far-reaching consequences. In 1772 the House of
Commons appointed a secret committee to probe into the affairs of the
Company. The committee reported, inter alia, that the Mayor's court had
degenerated into an engine of oppression rather than acting as a court of
justice. On the basis of the report of the committee the House of
Commons intervened and passed the Regulating Act 1773. The Act
empowered the King to establish by Charter a Supreme Court at
Calcutta. Accordingly the King issued the Charter of 1774 establishing
the Supreme Court at Calcutta.
 70

Subsequently a Supreme Court was established in place of the Mayor's

Court in each Presidency Town of Calcutta, Bombay, and Madras. Three
Courts of Requests in these cities were initially retained but were later
abolished in 1850, replaced by Small Causes Courts. The Supreme Court
comprised a Chief Justice and three puisne judges, all professional
barristers from England, serving at the pleasure of the King.

The Supreme Court held supervisory jurisdiction over the Court of

Collector, Quarter Session, Justice of Peace, and the Court of Requests,
with the authority to issue various prerogative writs. Its general
jurisdiction was confined to the geographical limits of the Presidency
Towns, extending personal jurisdiction over British subjects and those
employed by the Company.

With original, appellate, civil, criminal, ecclesiastical, and admiralty

jurisdiction, the Supreme Court heard appeals from Mufassil courts and
Company's courts. Second appeals exceeding 1000 pagodas lay with the
King-in-Council within six months. In criminal cases, the Supreme
Court had discretion over appeals to the King-in-Council.

Privy Council
↑
Supreme Court
↑
Governor-in-Council
↑
Court of Requests (until 1850) Court of Quarter Session
↑
Justices of the Peace
 71

●​ Defects with the Working the Supreme Court

In actual functioning, both the judiciary and the executive came into
serious conflict, and dissatisfaction arose between them under the
following points:

1.​ There appeared huge debate over the point of jurisdiction. In the
cases of Patna and Cossijurah, the Supreme Court came into open
conflict with the Company on the issue of whether the Indian
Zamindar and farmers of revenue came under the jurisdiction of
the Supreme Court or not.

2.​ There emerged conflict between the Supreme Court and the
Company's courts. This was because neither the Regulating Act
nor the Charter of 1774 clarified the relationship between the
Supreme Court and the Company's courts.

3.​ There occurred conflicts on the point of superiority between the

Council and the Supreme Court. There was a great deal of
vagueness in the crucial area of the relationship between the
Company and the Supreme Court.

4.​ The two distinct and parallel judicial systems—the Supreme Court
in the Presidency Towns and the Adalat in the Mufassil area—soon
gave rise to conflict over the question of jurisdiction. For example,
the Supreme Court claimed jurisdiction over the whole native
population, which was opposed by the Council of the Company.
 72

5.​ The cases of Raja Nandkumar, Radha Charan, Kamaluddin,

Saropchand, Patna, Cossijurah, etc., provide glaring examples of
the lacunae and defective provisions of the Regulating Act and the
Charter of 1774.

Thus, though the Supreme Court was designed to be independent in

discharging its functions, two fundamental shortcomings—the
deficiencies in the Regulating Act and the Charter, and the violent
interference of the executive—did not allow it to work independently.

●​ Development of Judicial System in Mufassil Area

The evolution of judicial institutions in British India can be traced from
two perspectives: (a) the development of Royal Courts in the Presidency
Towns, and (b) the establishment of Company's Courts in the Mufassil
area, beyond the Presidency Towns.

The evolution of the judicial system in the Presidency Towns

commenced with the Charter of 1726, progressing through the Mayor's
Court era and culminating in the establishment of the Supreme Court,
which later unified with the creation of High Courts in 1861.

Conversely, the evolution of judicial systems in the Mufassil area began

in 1772 with Warren Hastings' judicial plan in Bengal, Bihar, and Orissa.
Unlike in the Presidency Towns, the Company had complete control
over judicial development in the Mufassil area. Hastings' initial system
underwent modifications, improvements, and redefinitions over time
under different administrations. Consequently, Bengal served as a testing
ground for the adalat system, with successful models being applied to
Bombay and Madras provinces.
 73

Due to the division between the Presidency Towns and the Mufassil
area, the judicial system overseen by Crown Courts in the Presidency
Towns became known as the Presidency system of justice, while the
Company's courts in the Mufassil area were termed the provincial or
Mufassil system of justice. Cowell noted that these two distinct streams
of judiciary operated in Bengal for 88 years, from 1772 until their
unification in 1861.

●​ Warren Hastings’ Judicial Plan of 1772

Beyond the Presidency Town of Calcutta, the first territorial acquisition
of the company consisted of Bengal, Bihar, and Orissa. After the grant
of Diwani in 1765, the company did not change anything regarding the
administration of justice. All civil and criminal courts remained intact
under native control until 1772. In that year, with a view to regulating
the machinery of justice administration, Hastings divided the entire
territory of Bengal, Bihar, and Orissa into a number of districts, each
serving as a unit. This restructuring marked a new direction in the
judicial organization, which unfolded as follows:

Civil Judiciary Criminal Judiciary

Sadar Diwani Adalat Sadar Nizamat Adalat

(Capital) (Capital)
↑ ↑
Mufassil Diwani Adalat Mufassil Faujdari Adalat
(District) (District)

●​ Civil Courts
The Sadar Diwani Adalat, presided over by the
Governor-in-Council, served as the chief court of appeal in the
 74

capital. It was responsible for hearing appeals from the Mufassil

Diwani Adalat. Each district had its own Mufassil Diwani Adalat,
with an English collector serving as the judge. Appeals against its
decisions in cases exceeding Rs. 500 were made to the Sadar
Diwani Adalat.

●​ Criminal Courts
Sadar Nizamat Adalat was the chief court of criminal appeal at the
capital presided over by an Indian judge known as Daroga-i-Adalat
who was appointed by the Nawab on the advice of the Governor.
Mufassil Faujdari Adalat established in each district was presided
over by a collector to try all kinds of criminal cases. Appeal from
this Court lay to the Sadar Nizamat Adalat.

●​ New Plan of 1774

Under this plan, the entire territory of Bengal, Bihar, and Orissa was
divided into six divisions, each containing several districts. No changes
were made to the criminal judiciary, but a court called the Provincial
Council or Provincial Sadar Adalat was added to the civil judiciary in
each division. This court was presided over by four or five servants of
the company. It had three main functions: (i) overseeing revenue
collection, (ii) hearing appeals in civil cases, and (iii) deciding civil
cases as a court of first instance at its location. The court structure in the
civil judiciary was as follows:

Civil Judiciary Criminal Judiciary

Sadar Diwani Adalat Same as above

(Capital)
↑
 75

Provincial Council
(Division)
↑
Mufassil Diwani Adalat
(District)

●​ Judicial Plan of 1780

The most important feature of this plan was the separation of revenue
from the administration of justice. The Provincial Council was divested
of their judicial work and were to confine themselves only to the
collection of revenue. A separate Provincial Diwani Adalat was
established in each of the six divisions. This adalat was presided over by
a servant of the company known as the Superintendent of the Diwani
Adalat. The decision of this court was final in cases involving up to Rs.
1000. In matters of higher value appeal lay to the Sadar Diwani Adalat.
The structure of civil judiciary took the following shape:

Civil Judiciary Criminal Judiciary

Sadar Diwani Adalat Same as above

(Capital)
↑
Provincial Diwani Adalat
(Division)
↑
Mufassil Diwani Adalat
(District)

●​ Judicial Reforms under Elijah Impey and Lord Cornwallis:

1781-1793
 76

In 1781, Elijah Empay, who was the Chief Justice of the Calcutta
Supreme Court, was appointed by the company as the Chief Justice of
the Sadar Diwani Adalat as well. After being appointed, Empay
introduced some important reforms, such as increasing the number of
Mufassil Diwani Adalat from 6 to 18, and compiling a Civil Code for
the guidance of the Sadar Diwani and Mufassil Diwani Adalat.
However, before further improvements could be made, Justice Empay
was recalled by the British Parliament to explain his conduct in
accepting two posts simultaneously, one of which was subordinate to the
Governor-General and Council.

After Empay, Lord Cornwallis introduced judicial changes in three

phases: In 1787, 1790, and 1793. Following his scheme of 1793, the
judicial structure looked as follows:

Civil Judiciary Criminal Judiciary

Privy Council Sadar Nizamat Adalat

↑ ↑
Sadar Diwani Adalat Provincial Court of Appeal and
(Capital) Circuit
↑ ↑
Provincial Court of Appeal The Magistrates’ Court
(Division) (District) (Collector)
↑
Mufassil Diwani Adalat
(District)
↑
Munsiff and Registrar's Court
 77

Appeal to the Privy Council: The Act of Settlement 1781 first made
provisions for appeals to the Privy Council from Sadar Diwani Adalat in
civil suits valued at Rs. 50,000 or more.

The Provincial Court of Appeal was established in 1790, replacing

four Courts of Circuits in four divisions. Its predecessor was the
Provincial Diwani Adalat, formed under the plan of 1780. These four
appeal courts had jurisdiction over both criminal and civil suits. Cases
were sent to them by the Government or Sadar Diwani Adalat, and they
could also hear original suits referred by the Mufassil Diwani Adalat.
They heard appeals from all decisions of the Mufassil Diwani Adalats.

Magistrate's Courts were not a separate tier of court; magisterial

powers of the collectors were transferred to the Mufassil Diwani Adalat.
Thus, the Mufassil Diwani Adalat exercised both civil and criminal
functions.

The Registrar's Court was a subordinate court run by a company

servant. It heard cases valued up to Rs. 200. For cases up to Rs. 25, its
decisions were final, while appeals for amounts over Rs. 25 went to the
Provincial Court of Appeal.

The Munsiff's Court was established within 10 miles of the defendant’s

residence to bring justice closer and to save people from the
inconvenience of attending the Diwani Adalat. This court, presided over
by tehsildars, landholders, farmers, and other native commissioners,
heard cases up to Rs. 50 in value.

●​ Judicial Reforms by Lord Hastings (1814)

 78

Though reforms were made by Sir John Shore in 1795, Lord Wellesley
in 1798 and Lord Minto in 1812, the big change was done by Lord
Hastings in 1814 which were as follows:

Civil Judiciary Criminal Judiciary

Privy Council Sadar Nizamat Adalat

↑ ↑
Sadar Diwani Adalat Provincial Court of Appeal and
(Capital) Circuit
↑ ↑
Provincial Court of Appeal The Magistrates’ Courts
(Division) (District) (Collector)
↑ ↑
Mufassil Diwani Adalat Assistant Magistrates
(District)
↑
Registrar's Court
↑
Sadar Amin's Court
↑
Munsiff

The Registrar's Court, established in 1793, had jurisdiction to hear

cases up to Rs. 500 during Hastings' time.

Sadar Amin Court was established by Wellesley at each district

headquarters to decide cases up to Rs. 100, which was raised to Rs. 150
by Hastings.
 79

Munsiff's Court was established by Wellesley in every thana to decide

cases up to Rs. 50, which was raised to Rs. 64 by Hastings.

In 1796, the District Magistrates, i.e., Mufassil Diwani Adalat, were

authorized to employ their assistants in the execution of their duties. In
1807, Lord Minto enhanced the power of the District Magistrates to
enable them to award sentences up to six months' imprisonment with a
fine not exceeding Rs. 200, and in default, a further period of
imprisonment not exceeding six months. Thus, the entire period of
imprisonment under the sentence of a District Magistrate could, in no
case, exceed one year. Cases deserving severe punishment than this had
to be referred to the Court of Circuit for trial.

●​ Reform by Lord Hastings & Lord Bentick (1821-1835)

The restructuring of the judicial system brought about significant
changes in British India. The Provincial Court of Appeal was abolished,
and the District Diwani Adalat's original jurisdiction became unlimited.
Registrars lost their judicial powers as a result of these reforms. Instead,
a new court known as the Provincial Sadar Amin was established in
every district, manned by native judges. This court had jurisdiction over
cases ranging from Rs. 1,000 to Rs. 5,000.

In 1821, Lord Hastings expanded the role of Sadar Amins by granting

them criminal jurisdiction. District Magistrates could now refer petty
criminal cases to Sadar Amins for trial and punishment. Prior to this,
collectors lacked judicial authority. However, Hastings empowered
collectors with magisterial powers in 1821, leading to the emergence of
two types of district magistrates' courts: Judge-Magistrates and
Collector-Magistrates.
 80

Circuit Courts were abolished, and Commissioners of Revenue and

Circuit were appointed in each division instead. These Commissioners
were under the control of the Sadar Nizamat Adalat in their judicial
functions and the Board of Revenue in their revenue duties. They
supervised magistrates, police, collectors, and other executive revenue
officers. Commissioners exercised powers previously vested in circuit
courts and conducted sessions, taking on multiple responsibilities.

In response to the Commissioners' overloaded duties, Lord Bentinck's

Regulation No. VIII of 1831 authorized Commissioners to delegate
session trials to Sadar Diwani Adalats. Sessions Judges appointed by the
Commissioners tried cases committed to them by magistrates. However,
due to the Commissioners' inability to manage sessions alongside their
other duties, criminal cases were frequently transferred to district adalat
judges.

Thus, the District and Sessions Courts were established, still functioning
today and handling both civil and criminal matters. Additionally, the
jurisdiction of the Munsiff court was increased to Rs. 300, while Sadar
Amins were granted jurisdiction up to Rs. 1,000, reflecting further
adjustments in the judicial system.

●​Era of Unification: From 1861 till the

Independence in 1947 (Judicial Reform under the
Direct British Rule)
This period can be divided into two parts: From 1861 until 1935 (the era
of the High Court) and from 1935 until 1947 (the era of the High Court
and the Federal Court).
 81

Due to severe clashes between the executive and the Supreme Court,
within only seven years, the Supreme Court became a body disliked by
all. Petitions in the form of allegations were submitted to the King of
England not only by the Governor-General but also by the inhabitants of
Bengal. This led to the appointment of a Select Committee in 1780 to
inquire into the administration of justice in Bengal. The Committee's
report led to the passage of the Act of Settlement in 1781, which
curtailed the power of the Supreme Court to accommodate the Council's
opinion. The Supreme Court was deprived of its jurisdiction in revenue
matters and the Company's Court. While this plan resolved the clash
between the executive and the judiciary, it undermined the position and
prestige of the Supreme Court as the highest court and a court of record.
It was no longer in a position to interpret constructive inhabitancy,
exercising jurisdiction over many persons residing outside the
Presidency Towns. Mufassil courts gained jurisdiction over these
persons. Problems also arose regarding concurrent jurisdiction between
the two sets of courts, with conflicting decrees and execution
proceedings.

To address these issues, steps were taken to unite the two sets of courts.
In 1853, the first Law Commission was established in India, and an
all-India Legislature was created, whose laws were binding on all courts.
The second step involved the appointment of the second Law
Commission, tasked with formulating a scheme for amalgamating the
Sadar Adalats and the Supreme Court, as well as preparing codes of
procedure for all courts. The third step occurred with the dissolution of
the Company and the transfer of the Government of India to the British
Crown in 1858, following the events of the mutiny in 1857, which
facilitated the unification process. The final step was the enactment of
three uniform codes (Civil Procedure Code, Criminal Procedure Code,
 82

and Penal Code). With the achievement of this common legal

framework, the stage was set for the union of the two judicial systems,
which was finally accomplished by the British Parliament in 1861
through the enactment of the Indian High Courts Act. This Act provided
for the creation of High Courts in three Presidency Towns by merging
the Supreme Court and Sadar Adalats. The Charter for the Calcutta High
Court was issued in 1862, and the High Court was established on July 2,
1862.

●​ Judicial System after the Unification

Two parallel judicial systems, the Company's courts in Mufassil areas,
and three Supreme Courts (King's Courts) in three Presidency Towns,
were merged into a unified system under three High Courts of Judicature
at the Presidency Towns. This merger resulted in the abolition of the
Supreme Courts and the Courts of Sadar Diwani Adalat and Sadar
Nizamat Adalat.

The ordinary original jurisdiction of the High Court was initially limited
to the local limits of the Presidency Towns. In contrast, its predecessor,
the Supreme Court, exercised broader jurisdiction, encompassing certain
circumstances where persons and property beyond the local limits of the
Presidency Towns fell under its purview.

In its ordinary civil jurisdiction, the High Court was empowered to try
and determine suits of every description, except those falling within the
jurisdiction of the Small Causes Courts. Additionally, the High Court
held original criminal jurisdiction within the local limits of its civil
jurisdiction.
 83

The High Court also exercised appellate jurisdiction, hearing appeals

from both civil and criminal courts, from which appeals were preferred
to the Sadar Diwani and Sadar Nizamat Adalats. Specifically, the
original side of the High Court succeeded the Supreme Court, while the
appellate side succeeded the Sadar Diwani Adalat and Sadar Nizamat
Adalat.

Furthermore, the High Court had supervisory jurisdiction over all

subordinate courts, both civil and criminal. Unlike the previous Supreme
Court, the High Court was empowered to exercise jurisdiction over
revenue matters.

A further appeal from the decision of the High Court involving a sum
not less than Rs. 10,000 lay to the Privy Council. Moreover, the High
Court had the authority to certify that a case was fit for appeal to the
Privy Council.

●​ Aftermath of Unification: Regular Hierarchy of Civil

And Criminal Courts
After establishment of the High Courts, a regular hierarchy of civil
courts were established by Civil Courts Act 1887. On the criminal side
the Criminal Procedure Code 1898 re-organised all criminal courts. The
present system of both civil and criminal courts in Bangladesh have their
legal basis in Civil Courts Act 1871 and the Criminal Procedure Code
1898. Section 3 of the Civil Courts Act created the following four
classes of civil courts:

1.​ the Court of the District Judge;

2.​ the Court of the Additional Judge;
3.​ the Court of the Subordinate Judge; and
 84

4.​ the Court of the Munsif.

Apart from the above-mentioned four types of civil courts, the Courts of
Small Causes operated in both Presidency Towns and Mufassil area were
retained by the Small Causes Courts Act, 1887.

In criminal side the Code of Criminal Procedure, 1898 the operation of

which extended to the whole of the British India provided for the
following five classes of criminal courts:

1.​ Courts of Session;

2.​ Presidency Magistrates;
3.​ Magistrates of the First Class;
4.​ Magistrates of the Second Class; and
5.​ Magistrates of the Third Class.

●​ Structural Shape of the Legal System after the Unification in

the Province of Bengal

Privy Council
⬆
High Court
⬆
District Judge Sessions Judge
⬆ ⬆
Additional Judge Presidency Magistrates
⬆ ⬆
Subordinate Judge First Class Magistrates
⬆ ⬆
 85

Munsif Second Class Magistrates

⬆
Third Class Magistrates

●​ The Era of Federal Court and the High Court

The Government of India Act 1935 changed the structure of the Indian
Government from a ‘unitary’ to a ‘federal’ type. It therefore distributed
powers between the center and the constituent units. Consequently, it
provided for the establishment of a Federal Court. The Federal Court of
India was inaugurated on 1st October 1937. Below is the structure of the
judicial system after the Government of India Act 1935.

Privy Council
⬆
Federal Court
⬆
High Court
⬆
District Judge Sessions Judge
⬆ ⬆
Additional Judge Presidency Magistrates
⬆ ⬆
Subordinate Judge First Class Magistrates
⬆ ⬆
Munsif Second Class Magistrates
⬆
Third Class Magistrates
 86

●​ Constitution and Jurisdiction of the Federal Court

The Federal Court was composed of three judges: One Chief Justice and
two puisne judges. To be qualified as a judge in the Federal Court, a
person needed to meet one of the following criteria: Having five years of
experience as a judge of the High Court, being a barrister of at least ten
years standing, or being a pleader or advocate in the High Court with ten
years standing. The judges were appointed by the King and would hold
office until the age of sixty-five.

The Federal Court was granted exclusive jurisdiction to decide cases

between the Centre and the constituent units. Its advisory jurisdiction
was limited to cases referred to it by the Governor-General for advice on
any legal question of public importance.

The court also exercised appellate jurisdiction over decisions of the High
Court, though this was very limited. An appeal to the Federal Court was
allowed from any judgment, decree, or final order of a High Court if the
High Court certified that the case involved a substantial question of law
regarding the interpretation of the constitution.

Appeals could be made to the Privy Council from any judgment of the
Federal Court given in the exercise of its original jurisdiction, and in
other cases by leave of the Federal Court or the Privy Council itself.
Aside from the cases where appeals from the High Courts were made to
the Federal Court, the existing system of appeals from the High Courts
to the Privy Council remained intact and unaffected.

●​ The Independence and the Aftermath

 87

The British Parliament declared India and Pakistan independent

Dominions on the 15th of August, 1947, through the Indian
Independence Act of 1947. This act also stipulated that until new
constitutions were drafted for both nations, the governments would
operate under the framework of the Government of India Act of 1935.
Consequently, in both India and Pakistan, the Federal Court remained
operational until new judicial bodies were established under the new
constitutions.

In 1949, the Indian Constituent Assembly passed the Abolition of the

Privy Council Jurisdiction Act, 1949, which ended the practice of
appealing to the Privy Council from India.

Following the adoption of the Constitution of independent India in 1950,

the Federal Court was replaced by the Supreme Court of India, with the
former Federal Court judges assuming roles as judges of the Indian
Supreme Court.

Upon independence in 1947, a new Federal Court was promptly

established in Karachi by order of the Governor-General of Pakistan, in
accordance with the provisions of the Government of India Act of 1935.
Additionally, a High Court was established in Dhaka through another
order, the High Courts (Bengal) Order of 1947, due to constitutional
necessity. The judicial structure in other areas remained unchanged from
before 1947.

Similar to India, the Federal Court Order allowed the Federal Court of
Pakistan and provincial High Courts to function as subordinate courts to
the Privy Council temporarily. In 1950, two significant acts were passed:
The Federal Court (Enlargement of Jurisdiction) Act and the Privy
 88

Council (Abolition of Jurisdiction) Act. These acts severed Pakistan's

ties with the Privy Council, establishing the Federal Court as the highest
court until 1956, when the Supreme Court of Pakistan was established
under the new constitution.

●​Legal & Philosophical Discourses in Colonial

India: A Study of Despotism, Sovereignty, and the
Trial of Warren Hastings
●​ Depicting India As a Despotic State
●​ Origin of the Word ‘Despotism’
The term “despot” originates from a Greek word that referred to the
head of a household, and to govern despotically was to rule as a master
over a slave. By extension, the Greeks associated despotism with
arbitrary rule.

●​ Despotism in India in the Eye of the Colonizers

According to the British colonizers, India was in a despotic state in the
Mughal Period as the Emperor “owned” all the lands of Hindustan and
was thought to be the sole source of honor.
Alexander Dow, an employee of the East India Company, wrote about
the “despotic state” of India at that time. He wrote that there was a lack
of public spirit and loyalty in the government of India. People seemed to
accept being ruled by tyrants without complaint, and individuals are
indifferent to the sufferings of others as long as they can avoid it
themselves.
In the model of the Mughal Empire created by the British, there was no
primogeniture for inheriting the throne (masnad), and each succession of
a Mughal was accompanied by a bloody war. In this context, Alexander
Dow wrote: The power of disposing of the succession naturally belongs
 89

to a despot. During his life, his pleasure is the law. When he dies his
authority ceases….The Mughal might nominate one of his sons, not
necessarily the oldest, but the son must still fight for the throne. A
“prince must die by clemency, or wade through the blood of his family
to safety and Empire.”

●​ Concept of Law in the Mughal Period

The concept of “law” in India was believed to be different from
European law due to the government being based on the will of one
person, the Mughal Emperor. As a result, the law was based on his will,
and there could not be any absolute laws in its constitution as they would
often interfere with his will. Orme (1805) believed that in 1752 there
were no digests or codes of laws existing in India. The Tartars who
conquered this country could scarcely read or write; and when they
found it impossible to convert them to Mohammedanism, they left the
Hindus at liberty to follow their own religion. To both these people (the
lords and slaves of this empire), custom and religion had given all the
regulations at that time observed in India.

●​ Judicial System in the Mughal Period

The British acknowledged the existence of a judicial system in India,
with the Mughal court (Darbar) at the top and redress was available to
subjects by seeking justice from the emperor's court. However, they
believed that the courts were corrupt and litigants had to bribe the
members of the court to get justice.

To conclude, the model created by the Britishers of the Mughal-Indian

political system was all about absolute and arbitrary power, unchecked
by any institution, social or political and resting in the person of the
Emperor, with property and honor derived solely from the will of the
 90

despotic ruler. There were no fixed rules of inheritance and

primogeniture in relation to succession to the throne. Instead, succession
was based on a struggle among the emperor's sons. Justice was not based
on the rule of law but rather on the rule of men who could be influenced
by factors such as money, status, and connections when exercising their
role as judges.

The British rule in India was based on the idea that Indians were best
ruled by a “strong hand” who could administer justice without being
hindered by rules and regulations. This ruling paradigm was formed in
the nineteenth and twentieth centuries and revalorized the concept of
India being ruled by “despots.” The courts, their procedures, regulations,
and the propensity of the Indians to perjury and subornation of witnesses
resulted in delaying justice and making simple peasant folk prey of
urban-based lawyers, merchants, and agitators. The British appeared as
benevolent despots in several forms such as “platonic guardians”, as
patriarchs addressed as “maa-baap”, as authoritarian rationalist
utilitarians, and as Old Testament avengers during times of crisis.

In short, to recognize India as a ‘despotic state’ is wholly an idea of the

colonizers to justify their colonialism in India.

●​ Trial Of Warren Hastings

The impeachment trial of Warren Hastings is a significant political trial
in the history of the British Empire. It was a major public event that
exposed colonial ambitions and practices in the East to critique. The trial
questioned the legal and moral legitimacy of colonialism as a
phenomenon before the House of Lords, which was unprecedented in
England and Europe.
 91

●​ Accusations against Hastings

Hastings was impeached by the British House of Commons for ‘high
crimes and misdemeanors’ as the Governor-General of the East India
Company’s Government in India. The charges against Hastings include
corruption, extortion of bribes from the native rulers in India, abuse of
judicial authority, despotism, and arbitrary rule. Specifically, Hastings
was being tried for illegally occupying territory in India through
aggressive offensive and criminal wars against native rulers, treaty
violations, and open violence against the people of India.
After impeachment in the Commons, the case finally moved to the
House of Lords, the highest court of appeal in England, where Edmund
Burke and his team of managers launched a prosecution for the final
verdict.

●​ Defenses Used by Hastings & His Arguments

The defense of Hastings was constructed around two major claims about
sovereignty. The first claim is based on the identification of the
sovereignty exercised by the East India Company in India with its
chartered rights granted by the English Parliament.
The second and more radical claim was that the ‘crimes’ in India that
Hastings was being tried for, were in fact legitimate exercises of
sovereign power in the new colony.

Hastings argued that the source of this sovereignty was the Company's
inheritance of sovereignty over Bengal through a grant of the Diwani
from the Mughal emperor. He rejected the legitimacy of English
Parliament's attempts to control the Company's administration in India
through various acts and bills, asserting that since this sovereignty had
nothing to do with Parliament, it was beyond its jurisdiction and had to
 92

be exercised in accordance with Mughal laws, customs, and conventions

regarding sovereignty, not with those of the English.
According to Warren Hastings, the despotism that he inherited from the
Mughals in India was not a conscious choice of the government, but
rather a reaction to a rebellious population. He argued that the Indians,
who did not integrate with their conquerors, were kept in order only by
the strong hand of power. The constant need for exertion to maintain
control led to an increase in energy and extent, making rebellion the
parent and promoter of despotism. Sovereignty in India implies nothing
else but arbitrary power and the whole history of Asia is nothing more
than precedents to prove the exercise of arbitrary power.
Hastings asserted that due to the natural state of rebellion, the power of
the sovereign must be unlimited and unquestioned in order to ensure this
security and concepts such as justice and liberty are dependent on the
will of the sovereign. He used Hobbesian discourse to support his
argument.
Thus, Hastings argued in his defense that every policy that he has
pursued in India had been dictated by the necessity of preserving the
East India Company’s state in India and not by his personal corrupt
motives.

●​ Edmund Burke's Prosecution

Edmund Burke developed the imperial discourse of justice as a response
to the colonial discourse of sovereignty, which was based on government
as corporate property and arbitrary power. Burke had two tasks: To
prove that the East India Company was not just a mercantile corporate
body but also a government, and that private property as defined by
common law could not account for its operations. He also had to refute
Warren Hastings' characterization of “native” sovereignty by arguing
that both Mughal and Hindu rulers in India had well-developed legal
 93

systems that prevented arbitrary power by the sovereign, and that

Hastings' claim about a permanently rebellious population was
historically and factually unfounded.
He began his prosecution by establishing that the Mughal and Hindu
kings of India were not arbitrary rulers, but instead governed according
to established systems of jurisprudence. These systems were more
advanced than those in England and Europe. He asserted that the rights
of the people of India were established prior to colonialism and that the
colonial state had a responsibility to protect those rights.

●​ Significance of Hastings’ Trial

The trial involved two distinct legal systems, Indian and English, which
presented a number of challenges. One such challenge was determining
under which jurisprudence an English tribunal could try one of its own
subjects for crimes against an alien population. Additionally, questions
arose regarding whether a subject of England could be tried under the
laws of an alien land and how acts of violence could be translated into
the language of crime and punishment. Another issue was delegitimizing
the Company's claim to corporate property while still retaining some
form of jurisprudence for the trial. Finally, there was a need to firmly
reject the discourse of the will that formed the basis of Hastings' defense
and continental jurisprudence in favor of the discourse of empire.
The impeachment trial of Warren Hastings involved political crimes that
raised fundamental questions about politics, such as sovereignty, rights
of an alien population, and rules of war. The trial was not just about
Hastings as an individual or his specific criminal acts, but also about the
colonial state itself and the principles on which its discourse was
founded. The judgment given in this trial would serve as a precedent and
constitute the primary source of a critical discourse on colonialism in
 94

India. Burke emphasized that the judges' decision would determine the
character of future government in India.

Burke recognized the historic importance and unique challenges of the

trial, which transcended traditional legal frameworks. He emphasized
the trial's connection to broader issues beyond ordinary English affairs,
highlighting the need to adapt national justice to the demands of the
expanding empire. He criticized Hastings' approach of applying different
legal standards based on geography, advocating for a universal moral
law applicable everywhere. Burke proposed grounding the discourse of
empire in natural law, which he believed governed all laws and
embodied principles of humanity, justice, and equity.

●​ Colonial and Imperial Sovereignty in India with a

particular focus on Hobbes’ and Locke’s Political
Philosophy
‘Colonial sovereignty’ and ‘imperial sovereignty’ are the two significant
topics which came up in the impeachment trial of Warren Hastings. The
first topic had been pointed out by Warren Hastings while defending
himself and the second one was discussed by Prosecutor Edmund Burke.
Hastings took an attempt to use Thomas Hobbes’ social contract theory
in his defense. On the contrary, Burke used John Locke's political
philosophy against Hastings to rebut his arguments.

●​ The Discourse of Colonial Sovereignty

Generally, in a colonial sovereignty, Colonizers settle among and
establish control over the indigenous people of an area like the Britishers
did in the last half of 18th century in India.
 95

In his trial, Warren Hastings defended his actions as Governor-General

of India when confronted with accusations about the political nature of
the Company's operations in India.

(See Page 94)

●​ The Discourse of Imperial Sovereignty

Imperial sovereignty refers to the authority and control exerted by an
absolute sovereign power, typically a state or empire, over its territorial
possessions, colonies, or subjects.

(See Page 95)

●​ Hobbes’ & Locke's Social-Contract Theory

The social-contract theories of Hobbes and Locke, were distinguished by
their attempt to justify and delimit political authority on the grounds of
individual self-interest and rational consent.
According to Hobbes, the state of nature was like an existence where
each man lives for himself. It is characterized by extreme competition
where no one looks out for another. He believed that when people have
unlimited freedom, it leads to chaos and a war-like scenario.
For Locke, by contrast, the state of nature is characterized by the
absence of government but not by the absence of mutual obligation.
Unlike Hobbes, Locke believed individuals are naturally endowed with
the rights to life, liberty, and property and that the state of nature could
be relatively peaceful.

●​ Colonial & Imperial Sovereignty in India in Relations with

Hobbes’ & Locke's Political Philosophy
 96

Hastings’ defense was discursively framed by the Hobbesian theory of

absolute sovereignty. According to him, the unhindered exercise of
sovereign power in India was considered legitimate, unlike in England.
This was due to exceptional circumstances that resembled a state of civil
war, anarchy, and chaos described by Thomas Hobbes in his book
‘Leviathan’. Hastings used Hobbesian discourse to suggest that the
sovereign's power alone could guarantee security and preservation of life
and property. Therefore, it had to be unlimited and unquestioned, with
no independent existence of notions such as justice and liberty.

In opposition to the Hobbesian theory of absolute sovereignty the

political thinker John Locke had proposed that the state of nature, rather
than being characterized by chaos and anarchy, was a state in which
people had property and rights. These rights were only conditionally
surrendered to the monarch and the people had an obligation to obey
only so long as the state worked for their good. In claiming that the
rights of the people of India were prior to the state, Burke was resorting
to this political tradition in England that prioritized the liberty of the
people against claims of absolute power of the sovereign. As the King
was subordinate to the law in England, as the Mughal and Hindu rulers
in India were subordinate to the laws in India, so Burke argued, Hastings
and the Company’s government in India had to necessarily be
subordinate to law.

Here, two different types of sovereignty had been discussed. Colonial

sovereignty, the first type of sovereignty, had been discussed by Hastings
in his defense which actually reflected the absolute sovereignty of the
East India Company. Hastings tried to legitimize Company’s arbitrary
rule by using Hobbesian theory. On the other hand, Burke, on behalf of
 97

the British Government, followed Locke's theory to oppose him where

he gave emphasis on the discourse of imperial sovereignty.

Legal System of Bangladesh during 1971-72

●​The Proclamation of Independence: Bangladesh's

First Constitution
The general perception is that Bangladesh’s first constitution was
adopted in 1972, but legally, the country had a constitution from its
inception on March 26, 1971. The Proclamation of Independence, issued
on April 10, 1971, served as Bangladesh's first constitution. This
proclamation, made by the Constituent Assembly composed of elected
representatives, declared Bangladesh a sovereign People's Republic and
established the governance framework. It outlined the powers and
functions of state organs and affirmed the commitment to international
law.

From March 26, 1971, to December 16, 1972, Bangladesh was governed
by this proclamation. The Provisional Constitution of Bangladesh Order,
1972, later supplemented the Proclamation. These two documents
together constituted the legal framework until the formal constitution
came into effect on December 16, 1972. The Proclamation of
Independence holds a unique legal status, being referenced as a
transitional provision in the current constitution.

●​Formation & Legal Evolution of Bangladesh’s

Legal System
 98

The legal system of Bangladesh began with the Proclamation of

Independence on 26 March 1971, which also established the Mujibnagar
government. The first legal challenge was creating a body of laws for the
country. In order to have a set of laws, on 10 April 1971, the then Acting
President of Bangladesh Syed Nazrul Islam issued the order—The Laws
Continuance Enforcement Order, 1971 which was given retrospective
effect on and from 26 march, 1971 which declared that laws from East
Pakistan as of 25 March 1971 would continue in Bangladesh, with
necessary modifications to reflect the new sovereign state.

The order mandated that existing officials take an oath of allegiance to

Bangladesh. The validity of laws from this period was upheld in cases
like M/S. Dulichand Omraolal Vs. Bangladesh, though courts generally
refrained from examining the validity of laws enacted by Pakistan before
independence. However, Pakistani laws created during the liberation war
were not recognized as valid in Bangladesh, as demonstrated in cases
such as Md. Yahya Vs. Government of Bangladesh.

The Bangladesh (Adaptation of Existing Laws) Order, 1972, further

modified laws to reflect the new state’s sovereignty. The 1972
Constitution repealed the Laws Continuance Enforcement Order but
protected the laws it had continued under article 149, defining “existing
law” as any law in force immediately before the Constitution's
commencement.

●​Legislative Power in Bangladesh: From

Independence to Constitutional Governance
Bangladesh became an independent sovereign country on 26 March
1971. Initially, the Proclamation of Independence granted legislative
 99

power to the President, with the Vice-President assuming this role in his
absence.

After the adoption of the 1972 Constitution, legislative power was

transferred to the Parliament as per Article 65, though the Constitution
also allowed limited legislative authority to other bodies, including the
President (Article 93) and the Supreme Court (Article 107).

●​ Phase 1: Legislative Power under the Proclamation of

Independence
●​ President as Lawmaker
The Proclamation of Independence, issued on 10 April 1971 but
effective from 26 March 1971, served as Bangladesh's first constitution.
It vested legislative power in the President, stating that “The President
shall exercise all the Executive and Legislative powers of the Republic.”
Bangabandhu Sheikh Mujibur Rahman was named President, but, due to
his imprisonment in Pakistan, could not exercise these powers until his
return on 10 January 1972. On 11 January 1972, he issued the first law,
the Provisional Constitution of Bangladesh Order, 1972. This order,
although not officially numbered as a President’s Order (P.O.), was the
first legislative act under the Proclamation of Independence.

●​ Vice-President as Lawmaker
During Bangabandhu's absence, Vice-President Syed Nazrul Islam
exercised presidential powers. The Proclamation specified that in the
President's absence, the Vice-President would exercise all presidential
powers. Syed Nazrul Islam issued the first law, the Laws Continuance
Enforcement Order, on 10 April 1971, identifying himself as both
Vice-President and Acting President. Subsequent orders referred to him
solely as Acting President. Despite discrepancies in labeling and
 100

numbering these orders, they were all ratified and confirmed by the 1972
Constitution.

●​ Phase 2: Transitional Legislative Authority Under the

1972 Constitution
●​ Continued Presidential Legislative Power Post-Independence
The 1972 Constitution of Bangladesh granted legislative power to the
newly established parliament. However, as no parliament existed when
the Constitution took effect, the President retained legislative authority
until the first parliament met on April 7, 1973. This continuity was
provided under Section 3(2) of the 4th Schedule of the Constitution,
which maintained the President's power, exercised with the Prime
Minister's advice, despite the repeal of the Provisional Constitution of
Bangladesh Order, 1972. This provision ensured the President could
legislate until the parliament's first session.

During this interim period, the President issued orders under the
authority of the 4th Schedule, rather than the earlier Proclamation of
Independence. For instance, the preamble of the Bangladesh Insurance
Corporation (Dissolution) Order, 1972, referenced the 4th Schedule.

The Proclamation of Independence, which initially granted legislative

power to the President, was not repealed by the 1972 Constitution. Thus,
the President could not promulgate ordinances under article 93 of the
new Constitution before the parliament's creation, as Article 93's
authority required an existing parliament. Consequently, without Section
3(2) of the 4th Schedule, Bangladesh would have lacked legislative
authority during this period. The ordinance-making power under article
93 became functional only after the first parliament was established.
 101

●​Legislative Power & the 1972 Constitution of

Bangladesh
The 1972 Constitution of Bangladesh transferred legislative power from
the President to the Parliament, as stated in Article 65(1). This Article
allows Parliament to delegate legislative authority through Acts.
However, Parliament's legislative power only became functional after
the first parliamentary election in 1973, as no parliament existed when
the Constitution took effect on 16 December 1972. The Constituent
Assembly, created by the Bangladesh Constituent Assembly Order on 23
March 1972, was responsible for drafting the Constitution and did not
possess legislative power. The Assembly dissolved on 16 December
1972, when the Constitution came into force.

●​ Transition from Presidential to Parliamentary

Government in Bangladesh
The Proclamation of Independence established a presidential
government in Bangladesh, with Bangabandhu Sheikh Mujibur Rahman
as President, holding all executive, legislative, and military powers.
However, a parliamentary system was introduced on January 11 through
the Provisional Constitution of Bangladesh Order, requiring the
President to act on the Prime Minister's advice. The 1972 Constitution
later cemented the parliamentary system.

In the case of A.K.M. Fazlul Hoque & others Vs. State, it was argued
that the President couldn't change the government form using his
legislative powers from the Proclamation. The Court ruled otherwise,
stating that the Proclamation granted the President full legislative
authority, including the power to alter the government structure,
ensuring the President could establish an orderly and just government.
 102

Lawmaking Process in Bangladesh

●​History of Law-making
●​ Pre-British Era
Lawmaking by a specialized organ empowered by the state is a recent
development, whereas previously, laws were made by emperors, kings,
religious leaders, and councils of elders or wise men.

In Islamic law, theoreticians of law and councils of wise men were the
primary lawmakers. In Mughal India, while emperors promulgated laws,
the head Kazis of the provinces became important interpreters of laws
and established rules similar to precedents or judge-made laws.
Judge-made laws were compiled in the 16th and 17th centuries in
Mughal India and other centers of Muslim Empires in the Middle East
and Central Asia.

●​ Lawmaking Under the Colonial Rule

●​ The Origins of Lawmaking in the East India Company Era
The history of formal lawmaking in the Indian subcontinent began with
the East India Company. Early Charters granted the Company the
authority to create and enforce laws, modeled on the powers of by-law
creation commonly held by municipal and commercial corporations.
Initially, these legislative powers were basic and limited. However, as
the East India Company transitioned from a trading entity to a governing
body, these early legislative privileges became significant and laid down
the foundation for the Anglo-Indian Codes.
 103

●​ Legislative Powers Granted to the East India Company by

Queen Elizabeth's Charter and Subsequent Charters
Queen Elizabeth's Charter of 1600, along with similar charters issued by
James I in 1609 and 1661, authorized the East India Company to create
laws, orders, and ordinances for the good governance of the company
and its employees. These powers were intended to advance the
company's trade and traffic. Until 1726, these legislative powers
remained largely unchanged. However, George II's Charter of 1726
empowered the Governors and Councils of the Presidencies in Madras,
Bombay, and Bengal to make by-laws, rules, and ordinances for the
governance of corporations and inhabitants within their jurisdictions.
These laws and penalties were required to be reasonable and in
accordance with English law, and they only took effect after
confirmation by the Court of Directors. The language of subsequent
charters, such as that granted by George II in 1753, echoed similar
provisions.

The Charter of 1726 granted the East India Company recognition as a

ruling power over various towns, places, and factories it controlled,
despite the Crown lacking sovereignty over these territories, except for
Bombay. Indian rulers did not oppose the Company's assumed power
under this charter. Notably, the Charter expanded legislative power
beyond the Company and its servants to include the inhabitants,
including Indians, of the affected areas. Additionally, it transferred the
authority for lawmaking from the Court of Directors in England to the
Governors and Councils of the three Presidencies in India, establishing a
subordinate power of legislation within India, destined to replace the
Company's authority in this regard.
 104

●​ The Regulating Act of 1773: British Parliament's Intervention

in the East India Company's Affairs
Apprehensive of the East India Company's financial instability and
mismanagement in Bengal, the British Parliament intervened by passing
the East India Company Act, 1772, commonly known as the Regulating
Act of 1773. Section 36 of the Act empowered the Governor-General
and Council of Bengal to create Rules and Regulations for governing
their territories, which required registration and approval by the
Supreme Court. This system, reminiscent of earlier charters, marked a
significant change by involving the Supreme Court in law-making
through registration.

Despite this, the Regulating Act did not explicitly recognize the Diwani
grant of 1765 as a separate source of authority for the Company to enact
laws for the people of India. Nevertheless, the Company continued to
create Regulations for administering justice without submitting them to
the Supreme Court for approval.

●​ The Company's Role in Late 18th Century Bengal Governance

In the late 18th century, Bengal, like other provinces of Mughal India,
was governed by representatives of the Mughal Empire known as
Nawabs of Bengal. While formally under the Mughal Emperor's
allegiance, the Nawabs collected and paid taxes to the central exchequer,
retaining significant powers in administering justice. They often
delegated authority to local Zamindars. In 1765, the Nawab granted
revenue collection rights, known as Diwani, to the British East India
Company. This arrangement, akin to a Zamindari, was not uncommon
under the decentralized Mughal system, though the scale was
unprecedented. The Company's legislative powers, granted through
charters, were primarily for internal organizational matters. However,
 105

after assuming the role of Diwan, the Company's legislative power

extended to both internal management and the administration of Bengal.

●​ Establishment of Regulation Law in British India

Prior to 1793, British India lacked a comprehensive code of laws and
regulations, with regulations often being informally drawn and some
existing only as manuscripts. Lord Cornwallis addressed this issue by
introducing Regulation XLI, which mandated certain reforms in
legislative methods and forms. These reforms included providing each
regulation with a clear title and preamble, dividing them into sections
and clauses, numbering them, and recording, printing, and publishing all
regulations enacted in a year. Regulation XLI of 1793 marked the
beginning of the compilation of a code of regulations, initiating the era
of Regulation law. Until 1834, each Presidency in British India
developed its own set of regulations independently, leading to a lack of
coordination and harmonization between them.

●​ Centralization of Legislative Authority under the Government

of India Act, 1833
The Government of India Act, 1833, centralized legislative power under
the Governor-General in Council, ending the era of legislating by
regulations. It vested authority in the Governor-General to legislate for
India and its territories, subject to disallowance by the Court of
Directors. This Act deprived minor Presidency governments of their
law-making powers except in emergencies and repealed the requirement
for registration of laws in the Supreme Court.

●​ Evolution of Government in British India (1858-1918)

The Government of India Act, 1858, transferred power from the East
India Company to the British Crown, with authority exercised through
 106

the Secretary of State for India and a Council. Over the period from
1858 to 1918, four statutes were enacted, such as the Indian Councils
Act, 1861, which expanded and modified the Councils' functions and
composition both at the central and provincial levels.

●​ Evolution of Legislative Authority in British India

Prior to the Indian Councils Act of 1861, legislation in British India was
centralized. The Act established local legislatures in Madras and
Bombay, with provisions to extend them to Bengal and other provinces.
Section 23 of the Act empowered the Governor-General to issue
Ordinances during emergencies, which had the force of law for up to six
months unless disallowed by the British government.

●​ Overview of the Government of India Act, 1915

The Government of India Act, 1915 consolidated various Acts of
Parliament related to the governance of India into a single statute. It
established the composition of the Indian Legislative Council, conferred
legislative powers to the Governor-General, and allowed for the creation
of laws and ordinances for the peace and good government of British
India. The Act also empowered local legislatures with lawmaking
authority, subject to certain limitations.

●​ Amendments to Government of India Act, 1915 by

Government of India Act, 1919
The Government of India Act, 1919, amended and supplemented the
Government of India Act, 1915. It revised legislative powers, limiting
the cases requiring prior sanction from the Governor-General and
clarifying the statutory list of such cases. Additionally, it replaced the
concept of ‘Governor-General in Legislative Council’ with ‘Indian
 107

Legislature’, transferring the lawmaking power to the Legislative

Assembly.

●​ Evolution of Indian Governance: From 1915 to 1935

The Government of India Act, 1935, replaced the Acts of 1915 and
1919, fundamentally changing India's governance structure from unitary
to federal. It introduced autonomous administrations in provinces and
established Federal and Provincial Legislatures.

●​ Legislative Powers and Procedures under the 1935 Act

The Government of India Act of 1935 granted legislative powers to both
the Federal and Provincial Legislatures, with provisions for making laws
for different regions and circumstances. The Act established various lists
for subjects of legislation and outlined procedures for lawmaking,
including the role of the Governor-General and Governors. Additionally,
it allowed for emergency legislation and inter-provincial cooperation in
lawmaking. Overall, the Act introduced formalism and procedural
specialization to the colonial lawmaking process.

●​ Law Making Authority during Pakistan Period

(1947-1971)
●​ The Indian Independence Act of 1947
The Indian Independence Act of 1947 marked the end of British colonial
rule in India and the creation of two independent dominions, India and
Pakistan. It provided for the governance of these dominions in
accordance with the Government of India Act, 1935 until new
constitutions were adopted. The Constituent Assembly was empowered
to make laws and act as the federal legislature until the adoption of a
constitution. Existing laws of British India were to continue until
replaced by laws of the respective dominion legislatures.
 108

●​ The Pakistan (Adaptation of Existing Laws) Order, 1947

The Governor-General of Pakistan issued an order in August 1947,
adapting existing laws to the newly formed nation. This order confirmed
that laws in force before August 15, 1947, in the territories of the
Dominion of Pakistan, would continue to be recognized as laws in
Pakistan.

●​ Establishment of the Constitution of Pakistan, 1956

On April 15, 1955, the Governor-General of Pakistan issued the
Constituent Convention Order, which outlined the powers of the
Convention to form a Constitution. This Order was later replaced by the
Constituent Assembly Order on May 28, 1955. Under this, the
Constituent Assembly drafted the Constitution of Pakistan, which came
into effect on February 29, 1956, replacing previous laws. Article 224 of
the new Constitution ensured the continuity of existing laws until altered
or repealed by the appropriate authorities.

●​ Legislative Structure under the 1956 Constitution of Pakistan

The 1956 Constitution of Pakistan established a federal government and
provincial governments, each headed by a President or Governor
respectively. It outlined the powers and composition of the National
Assembly and Provincial Assembly, as well as transitional provisions for
the setup of these assemblies. The President and Governors were granted
powers to promulgate ordinances and make laws under specific
circumstances.

●​ Abrogation of the Constitution and Imposition of Martial Law

in Pakistan (1958)
 109

Shortly after the adoption of the Constitution of Pakistan in 1956,

President Iskander Mirza declared martial law, dissolved the National
and Provincial Assemblies, and appointed General Muhammad Ayub
Khan as the Chief Martial Law Administrator. This move was followed
by the promulgation of various orders granting extensive powers to the
President and the Chief Administrator of Martial Law.

●​ Legislative Framework of the 1962 Constitution of Pakistan

The 1962 Constitution of Pakistan, enacted by Field Marshal Ayub
Khan, defined the legislature, outlined the powers of the Central and
Provincial Legislatures, and granted legislative authority to the President
and Governors to issue ordinances. The constitution remained in effect
until it was abrogated by General Yahya Khan's Proclamation of Martial
Law in 1969.

●​ Martial Law Supersedes Legislative Functioning in Pakistan

General Yahaya Khan assumed both the presidency and the role of Chief
Martial Law Administrator in 1969, effectively concentrating power in
his hands. Despite the existence of elected representative bodies, such as
the National and Provincial Assemblies, meaningful legislative activity
was hindered by the dominance of Martial Law, resulting in the majority
of laws being promulgated by the Martial Administrator rather than by
elected representatives.

●​ Law Making Authority since Independence in 1971

●​ Legal Framework for Independence in East Pakistan
The Eastern Province of Pakistan, known as East Pakistan, declared
itself an independent state on April 10, 1971, with effect from March 26,
1971. The Proclamation of Independence vested all executive and
legislative powers in the President. The Laws Continuance Enforcement
 110

Order, 1971, ensured the continuity of existing laws, and the Provisional
Constitution of Bangladesh Order was promulgated on January 11, 1972,
by President Sheikh Mujibur Rahman.

●​ Adoption and Ratification of the Constitution of Bangladesh

The Constitution of Bangladesh was adopted on November 4, 1972, and
came into force on December 16, 1972, repealing previous laws. Clause
3(1) of the Fourth Schedule ratified and confirmed laws made between
March 26, 1971, and the commencement of the Constitution.

The adoption of the Constitution vested lawmaking authority primarily

in Parliament and, in the absence of Parliament, in the President through
ordinances. Until Parliament convened under the new Constitution, the
President held temporary legislative powers, allowing for the
continuation of governance as per the provisions of the previous
Constitution.

●​ Martial Law Implementation in Bangladesh, August 1975

In August 1975, Khondaker Mostaq Ahmad assumed the presidency of
Bangladesh and declared martial law, granting himself the authority to
make martial law regulations and orders. However, the constitution and
parliament remained theoretically intact, allowing for a dual system of
law-making alongside martial law regulations and presidential
ordinances.

●​ Transition of Lawmaking Powers in 1975

On November 8, 1975, Khondaker Mostaq Ahmad transferred the
presidency to Justice Abusadat Mohammad Sayem, who also took on the
role of Chief Martial Law Administrator. Unlike the Proclamation of
August 1975 which provided that the Martial Law Proclamations were
 111

to be issued by the President, the Proclamation of 8 November Provided

that the Martial Law Proclamations were to be issued by the Chief
Martial Law Administrator. Despite the dissolution of Parliament, the
Constitution remained in force, allowing President Sayem to continue
making Ordinances.

●​ Constitutional Amendments and Martial Law in Bangladesh

(1977-1979)
In April 1977, Justice Sayem resigned as President, appointing Major
General Ziaur Rahman as his successor. Martial Law continued until
November 1979, during which presidential and parliamentary elections
took place. The Constitution (Fifth Amendment) Act, 1979 ratified and
confirmed laws and actions taken during Martial Law.

●​ Legislative Changes During Martial Law and Transition to

Parliamentary Rule
Martial Law was again imposed in Bangladesh in 1982 by Lieutenant
General Hussain Muhammad Ershad, suspending the Constitution and
granting extensive legislative powers to the Chief Martial Law
Administrator. Despite brief periods of parliamentary session, Martial
Law continued until 1990, when President Ershad resigned, leading to a
transition to parliamentary rule under Acting President Shahabuddin
Ahmed.

The appointment of Chief Justice Shahabuddin Ahmed as Vice-President

and Acting President was initially deemed extra-constitutional, but was
later ratified by the Constitution's Eleventh Amendment Act. Since the
return to democracy in 1991, law-making in Bangladesh has been
primarily governed by the elected Parliament, with minimal use of the
President's ordinance-making power.
 112

●​Lawmaking Process in Bangladesh

●​ Law Making Authorities in Bangladesh
●​ Primary Legislation
Legislation by a body that is directly and specifically empowered by the
constitution, the supreme law, to make laws is called primary legislation.
For example, laws made by the Parliament under the authority of Article
65 of the Constitution fall under the category of primary legislation.
Likewise, Article 93 of the Constitution directly empowers the President
to make laws (ordinances) when the Parliament is not in session or
dissolved. These ordinances made by the President have the same status
and force of law as Acts of Parliament.

Articles 55(6), 62(2), 68, 75(1)(a), 79(3), 85, 115, 118(5), 127(2),
128(3), 133, 138(2), 147(2)(6), and 140(2) of the Constitution directly
empower the President to make secondary laws (orders, rules,
regulations). This power is subject to a variety of conditions.

First, Articles 62(2), 68, 79(3), 85, and 133 stipulate that the President
shall make rules or orders until positive laws are made by the
Parliament. Thus, the President is empowered to make secondary laws
for an interim period. However, in some cases, no positive laws have
been made by the Parliament to this day. For instance, the Government
Servants’ (Conduct) Rules, 1989 were made pursuant to Article 133 of
the Constitution.

Second, Articles 79(3), 118(5), 127(2), 138(2), and 140(2) state that the
President shall make orders or rules subject to the provisions of any law
made by the Parliament. The President's power to make secondary laws
 113

in these cases is, therefore, ongoing but subject to laws passed by

Parliament.

Third, in some cases, the President has been given unfettered

rule-making power. For instance, Articles 55(6) and 115 of the
Constitution state that the appointment of persons to offices in the
judicial service or as magistrates exercising judicial functions shall be
made by the President in accordance with rules made by him on that
behalf. Here, the President's rule-making power is almost unconditional.

●​ Subordinate/ Delegated Legislation

Subordinate legislation means legislation by a subordinate authority
under powers delegated to it by the supreme legislative authority
through its ordinary law. Subordinate legislation made by the
government is referred to as rules, while subordinate legislation made by
statutory authorities established by law is called regulations. Other legal
instruments include, for example, notifications drafted by administrative
bodies and bye-laws, which are generally made by a created authority
such as a local government.

●​ Guiding Laws
Constitutional provisions: Article 80 of the Constitution stipulates that
every proposal in Parliament for making a law shall be in the form of a
Bill, except for constitutional amendment bills, which are to be made as
per Article 142.

The Secretariat Instructions: Another important instrument is the

Secretariat Instructions of 2008. Instructions Nos. 225-238 deal with the
law-making process at the executive level. Their primary purpose is to
ensure uniformity and efficiency in the observance of Secretariat
 114

practices and procedures. All government business is to be conducted in

accordance with both the Rules of Business and the Secretariat
Instructions.

Rules of Business: Rule 14(A) of the Rules of Business of 1996

provides for consultation on legislative matters with the Legislative and
Parliamentary Affairs Division, Ministry of Law, Justice, and
Parliamentary Affairs.

The Rules of Procedure of Parliament: Another important instrument

is the Rules of Procedure of Parliament. Its Chapter XIII, consisting of 5
Parts, deals with the law-making process of Parliament. More
specifically, rules 72-98 provide the detailed procedure starting from the
introduction of a Bill to Parliament and its assent by the President for
final publication as an Act of Parliament.

●​Stages of Lawmaking Process (General)

●​ Agenda Setting
Agenda-setting theory: This theory suggests that the media, interest
groups and political actors have the power to shape the public and
legislative agendas. They do this by highlighting certain issues on
problems, making them a priority for lawmakers.

●​ Policy Formulation
Institutionalism: This theory emphasizes the role of government
institutions in policy formulation. Lawmakers and bureaucrats in
legislatures and government agencies draft bills and policies, taking into
account their expertise, interests. and the influence of external actors.

●​ Legislative Process
 115

Rational choice Theory: This theory focuses on the behavior of

individual legislators. It suggests that lawmakers make decisions based
on their self-interest, weighing the costs and benefits of supporting or
opposing a proposed law.

●​ Public Opinion and Pressure

Pluralism: This theory highlights the role of interest groups and
advocacy organizations in shaping legislation. These groups mobilize
public opinion and apply pressure on lawmakers to support their
preferred policies.

●​ Debate and Deliberation

Deliberative Democracy: This theory emphasizes the importance of
reasoned debate and discussion in the legislative process. It suggests that
laws should be the result of inclusive and informed deliberation among
citizens and representatives.

●​ Voting and Decision-Making

Majoritarianism: This theory posits that decisions in a democracy
should reflect the preferences of the majority. In the legislative context
this means that laws are enacted through votes in which the majority
wins.

●​ Executive Review and Approval

Presidentialism: In systems with a separate executive branch (such the
US) the executive, often the president, has the power to veto legislation
or sign it into law. This theory examines the role of the executive in
shaping the final outcome of the legislative process.

●​ Implementation
 116

Implementation theory: After a law is passed it must be implemented

by government agencies. This theory explores the challenges and
processes involved in translating legislation into action.

●​ Monitoring and Evaluation

Policy Evaluation: This theory focuses on assessing the effectiveness of
laws and policies after they have been implemented. It helps determine
whether the intended outcomes are being achieved.

●​ Amendment and Revision

Incrementalism: Legislation is often subject to amendment and revision
over time. Incrementalism suggests that changes to laws are typically
small and gradual, reflecting a pragmatic approach to policy adjustment.

●​ Feedback Loop
Feedback theory: This theory emphasizes the importance of feedback
from the public, interest groups and experts in shaping the evolution of
laws and policies over time.

●​Steps in Lawmaking Process in Bangladesh

1.​ Preparation of a draft by the sponsoring Ministry/ Division and
sending the Bill to the Cabinet for Approval on Principle.
2.​ If the Bill is approved on Principle by the Cabinet, it is to be sent
back to the sponsoring Ministry /Division.
3.​ The Bill is sent to LPAD for Examination/ Scrutiny/ Vetting.
4.​ After examination/ scrutiny/ vetting of the Bill by LPAD, it is to be
sent back to the sponsoring Ministry/Division.
5.​ Sending the Bill to the Cabinet for Final Approval.
6.​ After approval by the Cabinet, the bill is sent back to the
Sponsoring Ministry/ Division.
 117

7.​ The sponsoring Ministry/ Division will send the Bill to the
Parliament.
8.​ The Parliament will send the Bill to the concerned Parliamentary
Standing Committee for Scrutiny.
9.​ After scrutiny of the Bill, the Parliamentary Standing Committee
will submit a report to the Session (Parliament).
10.​ After passing the Bill by the Parliament, the Bill is to be sent to
the President for Assent.
11.​ After Assent, the Bill is to be sent back to the Parliament.
12.​ Printing of the Bill.

Law Reporting

Generally, a law report is a record of a judicial decision on a point of law

that sets a precedent. The binding effect of Supreme Court judgments as
‘precedents’ has been well clarified in Article 111 of the Constitution of
Bangladesh, which says that the law declared by the Appellate Division
is binding on the High Court Division, and the law declared by either
division of the Supreme Court is binding on all courts subordinate to it.

●​History of Law Reporting

Law reporting has a long but inconsistent history. The need for accurate,
reliable, and affordable reports of legal proceedings is undisputed.
However, achieving this was done in a piecemeal and haphazard manner
until 1865.

Regular reporting began with the Year Books, which recorded cases
from 1285 to 1537 in Anglo-Norman. By the 16th century, individual
reporters published case reports known as The Nominate Reports. These
 118

varied in quality but are still cited today, especially those compiled in the
English Reports. The proliferation of case reports and uncertainty about
authoritative judgments led to the creation of the Incorporated Council
of Law Reporting (ICLR) to publish the Official Law Reports.

Edmund Plowden is considered the first law reporter of common law.

Plowden's reports, published in the 16th century, included detailed facts
of the cases.

Sir James Burrow (1701-1782) is regarded as the father of modern law

reporting. Burrow's reports established the modern pattern of what a law
report should contain: the reporter's statement of the facts, a summary of
the arguments of counsel, and the court's judgment.

The All England Law Reports (All ER) have been published by
Butterworths/ Lexis since 1936. The criteria for reporting a case in the
All ER are similar to those used for the Official Law Reports. The All
ER reports more judgments more quickly than the Law Reports. The All
ER includes cross-references to Halsbury's Statutes and Halsbury's
Laws.

●​Law Reporting in India

The Supreme Court in Calcutta was established in 1734. At that time,
law reporting did not take a correct shape; it was irregular, unorganized,
and unsystematic. Sir Francis Macnaghten compiled some cases
pertaining to Hindu law and published them in 1824 under the title
‘Considerations upon Hindu Law.’ This was the first instance of law
reporting in India. Later, Sir William Macnaghten compiled some cases
pertaining to Muslim law and published them in the same year under the
 119

title ‘Principles and Precedents of Mohammedan Law.’ Subsequently,

several others took similar steps.

After 1947, the number of law reporting institutions increased. In place

of the Federal Court and Privy Council, the Supreme Court of India was
established in Delhi in 1950. Several reporters began to report on
Supreme Court judgments, such as All India Reporter, the Madras Law
Journal, Supreme Court Journal (SCJ), Supreme Court Weekly Reports,
etc.

●​Law Reporting in Bangladesh

After the Supreme Court of Bangladesh was established in 1972, it
initially published a law report containing the judgments, orders, and
decisions of the court. At present, there are many institutions that
publish decisions of the Supreme Court of Bangladesh. Dhaka Law
Reports (DLR), Bangladesh Legal Decisions (BLD), Mainstream Law
Reports (MLR), Bangladesh Law Chronicles (BLC), Bangladesh Law
Times (BLT), Law Guardian (LG), and many others publish Supreme
Court decisions both monthly and yearly in order to provide ready case
references to the legal community and the public at large. Under the
guidance of the Judicial Reform Committee, the Supreme Court of
Bangladesh has also started publishing an online law report named
Supreme Court Online Bulletin (SCOB), which compiles important
judgments from the Appellate Division and the High Court Division.

It should be noted that there are no institutions that publish decisions

held by the subordinate courts in Bangladesh. However, a few law
reports publish the decisions of special courts/ tribunals, such as the
decisions of the Administrative Tribunal, International Crimes Tribunal,
Bangladesh Bar Council Tribunal, etc., either in regular or special issues.
 120

●​ The Way a Case is Reported in Bangladesh

Compared to the system of English citation, it is less complex in
Bangladesh given the fact that only the decisions of the High Court
Division and the Appellate Division are reported. The differences in
citation are as follows:

1.​ There is an attempt to classify cases (unlike in the UK) by the

court in which they were decided. Thus, in the citation of Al-Sayer
Nav. v Delta Int. Traders 34 DLR AD 110, it is indicated by ‘AD’
that the case was finally decided by the Appellate Division of the
Supreme Court.

2.​ Unlike in the UK, the year of the case does not appear in square
brackets. The most popular law report, DLR, starts with the
volume number, and the year of the case is not indicated at all. For
instance, 34 DLR AD 110 and 26 DLR SC 17. However, in some
law reports, the year of the case or the name of the reporters rather
than the volume number appears first in the citation. For instance,
1982 BLD AD 69 and BCR 1984 AD 29.

3.​ Unlike in the UK, there is no information as to whether a particular

judgment was reserved or ex tempore.

4.​ Only the date of judgment is given, and no dates of hearing are
available.

5.​ Lists of cases are rarely classified into two separate groups as is
often done in England.
 121

Supreme Court of Bangladesh

●​History of the Supreme Court of Bangladesh

In 1726, King George I issued a Charter changing the judicial
administration of the Presidency towns of Calcutta, Bombay, and
Madras. Through this charter, the Civil and Criminal Courts began
deriving their authority from the King. The filing of appeals from India
to the Privy Council in England was introduced by the Charter of 1726.

The East India Company Regulating Act, 1773, was introduced to place
the East India Company under the control of the British Government.
This Act provided for the establishment of a Supreme Court of
Judicature at Fort William, Calcutta.

The Supreme Court of Judicature at Fort William in Bengal was

established by Letters Patent issued on March 26, 1774.

By an Act passed in 1833, the Privy Council was transformed into an

Imperial Court of unimpeachable authority, which played a great role as
a unifying force for the establishment of the rule of law in the Indian
Subcontinent.

The judicial system of India was reorganized by the Indian High Courts
Act of 1861, which established High Courts and abolished the Supreme
Courts at Fort William (Calcutta), Madras, and Bombay. The new High
Courts were conferred with Civil, Criminal, Admiralty, Testamentary,
and Matrimonial jurisdictions, with both Original and Appellate
Jurisdiction.
 122

With the transfer of power from the British Parliament to the people
during the division of India, the High Court of Bengal (Order) 1947 was
promulgated under the Indian Independence Act, 1947. The High Court
of Judicature for East Bengal at Dhaka was established as a separate
High Court for East Pakistan. This High Court was commonly known as
the Dhaka High Court and was vested with all Appellate, Civil, and
Original jurisdictions.

With the enforcement of the Constitution of the Islamic Republic of

Pakistan in 1956, the Supreme Court of Pakistan was established as the
apex court of the country, which then consisted of East Pakistan and
West Pakistan. It replaced the Federal Court and had appellate
jurisdiction over the decisions of the High Courts in the provinces of
Pakistan.

After independence in 1971, the Constitution of Bangladesh came into

effect on December 16, 1972, and Article 94(1) of the constitution
provided instructions for establishing the Supreme Court.

Article 94(1) of the Constitution

There shall be a Supreme Court for Bangladesh (to be known as the
Supreme Court of Bangladesh) comprising the Appellate Division and
the High Court Division.

●​The High Court Division: Powers & Functions

The High Court Division shall have such original, appellate and other
jurisdictions and powers as are conferred on it by this Constitution or
any other law. [Article 101]
 123

According to Article 101 there are two sources of powers and

jurisdiction of the High Court Division: the Constitution and ordinary
law. Hence the jurisdiction of the High Court Division may be divided
into two categories: Ordinary or general jurisdiction and Constitutional
jurisdiction.

●​ Ordinary Jurisdiction
Jurisdiction conferred on the High Court Division (HCD) by any
ordinary law is its ordinary jurisdiction, which may be of the following
types:

1.​ Original Jurisdiction

Original jurisdiction of the HCD means the jurisdiction whereby it can
hear a case or suit as a court of first instance. It is for the ordinary laws,
passed by parliament, to specify what particular subject matter will come
under the ordinary jurisdiction of the HCD. For example, the Companies
Act, 1913, the Admiralty Act, 1861, and the Banking Company's
Ordinance, 1962, have conferred on the High Court Division the
ordinary jurisdiction.

2.​ Appellate Jurisdiction

Appellate jurisdiction refers to the authority of a higher court to review
and reconsider decisions made by a lower court. It allows a higher court,
known as the appellate court or court of appeals, to examine the
decisions of lower courts to ensure they were made correctly and in
accordance with the law. The Appellate Division typically reviews
decisions made by lower courts, corrects errors, but does not consider
new evidence or witnesses. An Act of Parliament may confer on the
HCD appellate jurisdiction over any matter. For example, the Criminal
 124

Procedure Code (CrPC) and the Civil Procedure Code (CPC) have
conferred on the HCD appellate jurisdiction.

3.​ Revisional Jurisdiction

Revisional jurisdiction refers to the authority of a higher court to
examine and correct the decisions of subordinate or lower courts within
its jurisdiction. For example, Section 115 of the CPC has conferred on
the HCD revisional power.

4.​ Reference Jurisdiction

Reference jurisdiction refers to the authority of a court or a judicial body
to provide opinions or guidance on legal questions referred to it by any
subordinate court. For example, Section 113 of the Civil Procedure Code
(CPC) gives the HCD reference jurisdiction.

●​ Constitutional Jurisdiction of the HCD

The Constitution itself has conferred on the HCD the following three
types of jurisdictions:

A.​Writ Jurisdiction
The HCD's original jurisdiction is limited to writ matters as granted by
Article 102 of the Constitution. Writ jurisdiction allows the HCD to
enforce fundamental rights and exercise judicial review.

A writ is a written document used to summon or require someone to do

or refrain from doing something. It originated in the British legal system
as a mandatory letter from the king-in-parliament, directed to the Sheriff
of the county. It was a written order made by the English monarch to a
specified person to undertake a specified action to avail the remedial
right for enforcement of law against governmental or statutory public
 125

bodies. Initially, writs were royal prerogatives, but they later became the
prerogatives of the courts and the people. Several types of prerogative
writs were issued to compel officers to exercise their functions properly
or prevent them from abusing their powers. Today, citizens can invoke
these writs as guaranteed rights in the constitutions of many countries. A
writ may occur even if a government body takes any undeserved adverse
action against people.

●​ What Is a Public Body

The term “public body” encompasses any entity, whether an
authority, corporation, or institution, formed by or under the law,
including those owned, controlled, or established by the
government. Individuals employed within such entities are subject
to standardized grades, scales, and terms of service as determined
by the government. This definition was established in the case of
Abu-al-Siddique (Md.) Vs. Bangladesh and Others in Writ Petition
No. 7074 of 2012.

●​ Classification of Writs
1.​ Habeas Corpus
The word ‘Habeas Corpus’ means ‘have his body’ i.e. to have the
body before the court. The writ of Habeas Corpus is a court order
that requires authorities to bring a person into court and explain
why they are being held in custody. The court can order the
individual's release if the explanation is unsatisfactory, making it
an effective means of securing personal liberty. Lord Acton has
noted that the Habeas Corpus Act of 1679 is considered a crucial
part of the British Constitution.

2.​ Writ of Mandamus

 126

Literally the term ‘mandamus’ means ‘we command’. Mandamus

is an order that commands a person or authority to perform a
public duty when they have failed to fulfill their statutory
obligation. It is a positive remedy issued by the High Court of
Justice in England, directed at any person, corporation, or inferior
tribunal. The writ of mandamus is of an extensive remedial nature
that compels the authority or court or person to do his statutory
obligation.

3.​ Writ of Prohibition

Prohibition is an ancient writ that limits the jurisdiction of judicial
or quasi-judicial bodies. Originally, it was used against
ecclesiastical courts, but now it can be used against any public
body. The writ is issued when a court, tribunal, authority, or person
violates natural justice, abuses power, or acts beyond its
jurisdiction. Prohibition is a preventive remedy.

4.​ Writ of Certiorari

The writ of ‘certiorari’ is a legal term that means ‘to be certified’
or ‘to be more fully informed of’. It was created to control the
action of inferior courts and ensure they did not exceed their
jurisdiction. Originally used by the King's Bench and Chancery to
exercise superintending control over inferior courts, its jurisdiction
has expanded to include all authorities performing judicial,
quasi-judicial, and administrative functions. The higher court can
issue certiorari to quash an act that violates the principle of natural
justice, misuses power, or exceeds jurisdiction.

5.​ Writ of Quo Warranto

 127

The term “quo-warranto” means ‘by what warrant or authority’. It

is a writ used to settle the title to an office, franchise, or liberty
when someone occupies or usurps it. If a person illegally holds a
public office, the higher court may issue a quo-warranto to ask the
person to show on what authority they hold the office and to
remove them from the position.

According to Article 102 of the Constitution, the High Court Division

can issue such directions or orders to any person or authority, including
those involved in the affairs of the Republic, to enforce fundamental
rights as outlined in Part III of the Constitution, upon application by an
aggrieved individual.

It should be noted that the names of various writs have not been used in
Article 102 but the true contents of each of the major writs have been set
out in self-contained propositions. According to this Article, the High
Court Division has the authority to issue orders if no other effective
remedy is available by law:

A.​It can, upon an application by an aggrieved person:

1.​ Direct a person involved in the affairs of the Republic or a
local authority to either stop doing something unlawful or to
fulfill a legal obligation.
2.​ Declare that any action taken by such a person without legal
authority is null and void.

B.​It can, upon an application by any person:

1.​ Order that a person in custody be brought before the court to
ensure the custody is lawful.
 128

2.​ Require a person claiming to hold a public office to

demonstrate the legal authority for their position.

In this article, unless the context otherwise requires, “person” includes a

statutory public authority and any court or tribunal, other than a court or
tribunal established under a law relating to the defense services of
Bangladesh or any disciplined force or a tribunal to which article 117
applies.

In the case of Mozammel Haque vs Secretary, Cabinet Division, Justice

Md Ashfaqul Islam emphasized that all government decisions, especially
those impacting the public and involving policy, are subject to judicial
review. He asserted that if any government decision is found to be
unfair, lacking valid reasoning, or unsupported by the record, it can be
invalidated by the judiciary.

●​ Relief Afforded in Writ Jurisdiction

In the context of writ jurisdiction, relief can be provided through several
mechanisms:

1.​ Rule Nisi: This is a preliminary order issued by the court, which
requires the respondent to show cause why the relief sought by the
petitioner should not be granted. It is essentially a show-cause
notice where the respondent must justify their actions or decisions.

2.​ Prima Facie Case: Interim Order: When a petitioner presents a

strong prima facie case, the court may grant an interim order. This
temporary relief is provided to prevent any further harm or
injustice to the petitioner while the case is being decided.
 129

3.​ Interim Order/ Status Quo: This type of order is issued to

maintain the current state of affairs until the final decision is made.
It ensures that no changes occur that could affect the rights or
position of the parties involved in the case. This is crucial to
prevent irreparable harm or to preserve the rights of the petitioner
during the pendency of the litigation.

4.​ Final Order: After hearing the case and considering all the
evidence and arguments, the court issues a final order. This order
resolves the matter by granting or denying the relief sought by the
petitioner. It is binding on all parties involved and serves as the
court’s conclusive determination of the issues presented.

5.​ To Award Costs: The court may also award costs to the prevailing
party. This means that the losing party may be required to pay the
legal expenses and costs incurred by the winning party. This is
done to compensate the prevailing party for the expenses of
litigation and to discourage frivolous or unfounded claims.

B.​Jurisdiction as to Superintendence and Control

It is a Supervisory Power over subordinate jurisdiction against whose
decision an appeal or revision lies.

Article 109 of the Constitution states that The HCD shall have
superintendence and control over all courts and tribunals subordinate to
it. So the condition for supervisory power is that the court or tribunal
must be subordinate to the HCD. To be subordinate to the HCD the court
or tribunal must be subject to its either appellate or revisional
jurisdiction.
 130

C.​Jurisdiction as to Transfer of Cases

Under Article 110 of the Constitution, the High Court Division (HCD)
can transfer a case from a subordinate court to itself if it is satisfied that:

1.​ A substantial question of law regarding the interpretation of the

Constitution is involved; or
2.​ A point of general public importance is involved.

If the HCD withdraws a case from a subordinate court, it has three

options:

1.​ Dispose of the case itself.

2.​ Determine the question of law and return the case to the
original subordinate court with a copy of its judgment on the
legal question, instructing the court to dispose of the case in
accordance with this judgment.
3.​ Determine the question of law and transfer the case to another
subordinate court with a copy of its judgment on the legal
question, instructing the new court to dispose of the case in
accordance with this judgment.

The power of transfer under Article 110 is a discretionary power, and no

litigant can invoke this power as of right. This power can be exercised
suo motu by the HCD or on an application by any party to a suit.
Additionally, the subordinate court before which the case is pending may
also refer the case to the HCD. It is important to note that the HCD has
been given the power to transfer civil suits and criminal cases by the
CPC and CrPC under certain circumstances. However, this latter power
of transfer is a statutory power, whereas the power under Article 110 is a
constitutional power.
 131

●​The Appellate Division: Power & Functions

The Appellate Division of the Supreme Court has no original
jurisdiction. Like the HCD, the source of jurisdiction of the Appellate
Division is also twofold: the Constitution and ordinary law. However, an
ordinary law can grant the Appellate Division only appellate
jurisdiction, as stated in Article 103(4) of the Constitution. For example,
Section 6A of the Administrative Tribunals Act, 1980 provides that an
appeal may be preferred to the Appellate Division against the decision of
the Administrative Appeal Tribunal by way of a leave petition.

●​ Constitutional Jurisdiction of the Appellate Division

The Constitution itself has conferred on the Appellate Division the
following four types of jurisdictions:

1.​ Appellate Jurisdiction

The constitutional appellate jurisdiction of the Appellate Division
applies only against the judgment, decree, order or sentence of the HCD
as stated in Article 103 of the Constitution. This constitutional appellate
jurisdiction has two dimensions:

A.​Cases where appeal lies as of right; and

B.​Cases where appeal can be made if the Appellate Division grants
leave to appeal.

●​ Cases Where the Appeal Lies as of Right

Under Article 103 an appeal to the Appellate Division from the
judgment, decrees, order or sentence of the HCD lies as of right in
the following three cases:
 132

1.​ Where the HCD certifies that the case involves a substantial
question of law as to the interpretation of the Constitution; or
2.​ Where the HCD sentences a person to death or imprisonment
for life; or
3.​ Where the HCD punishes a person for its contempt.

●​ Cases Where an Appeal can be Made If the AD Grants Leave

to Appeal
It is stated in the last line of Article 103(2) of the Constitution that
parliament may by law add to this list other cases in which appeal
as of right may be filed.
In all other cases except the above mentioned three cases appeal
shall lie from the judgment, decree, order or sentence of the HCD
only if the Appellate Division grants leave to appeal.

2.​ Jurisdiction As to Issue and Execution of Process

This power of the Appellate Division is also called the power to do
complete justice. Article 104 of the Constitution provides that the
Appellate Division shall have the power to issue such orders or
directions as may be necessary for doing complete justice in any case or
matter pending before it. This power is discretionary and extraordinary
in nature. The Appellate Division may use this power suo motu or on the
application of any party. This power has not been circumscribed by any
limiting words, and no attempt has been made to define or describe
complete justice. This is because any such attempt would certainly
defeat the very purpose of conferring such power.

3.​ Jurisdiction as to Review

Article 105 of the Constitution empowers the Appellate Division to
review its own judgment or order, but this power is to be exercised:
 133

1.​ Subject to the provisions of an Act of Parliament; and

2.​ Subject to the rules made by the Appellate Division.

Accordingly, the Supreme Court of Bangladesh (Appellate Division)

Rules were framed by the Appellate Division in 1988. According to
these Rules, the Appellate Division may, either on its own motion or on
the application of a party to a proceeding, review its own judgment or
order:

1.​ In a civil proceeding, on grounds similar to those mentioned in

Order XLVII Rule 1 of the Code of Civil Procedure.
2.​ In a criminal proceeding, on the ground of an error apparent on the
face of the record (Rule 1 of Order XXVI) of the above Rules.

4.​ Advisory Jurisdiction

Article 106 provides that the President may seek the opinion of the
Appellate Division on a question of law that has arisen or is likely to
arise, and which is of such nature and public importance that it is
expedient to obtain opinions. There are some important features of this
advisory jurisdiction:

1.​ Only a question of law may be referred to the Appellate Division

for its advisory opinion, not a question of fact.

2.​ It is not obligatory for the Appellate Division to express its opinion
on the reference made to it. It has discretion in the matter and may,
in a proper case, for good reasons, decline to express any opinion
on the submitted question. Such a situation may arise if purely
socio-economic or political questions with no constitutional
 134

significance are referred to the court, or if a reference raises

hypothetical issues that cannot be answered without a full set of
facts.

3.​ The rendered opinion is essentially advisory in nature and is not

binding as a judicial pronouncement. It is also not binding on the
referring authority.

Though there are weighty arguments both for and against this advisory
power of the Supreme Court, normally it is not the function of the court
to give advice to the executive, and hence the practice of invoking
advisory judicial opinions is not universally approved.

In India, until 1978, seven references were made to the Supreme Court
under Article 143(1) of the Indian Constitution. In Bangladesh, during
the last over 32 years since the Constitution came into force, only one
reference has been made to the Supreme Court under Article 106 of the
Constitution. This was the reference of July 4, 1995. In the reference, the
President of Bangladesh asked the Appellate Division for its opinion on
the following:

1.​ Whether the walkout and non-return to parliament by all the

opposition parties be construed as ‘absent’ from parliament?
2.​ Whether the boycott of parliament means ‘absent’ from parliament
without leave of parliament resulting in the vacation of the seats?
3.​ Whether ninety consecutive sitting days be computed excluding or
including the period between two sessions intervened by
prorogation of the parliament?; and
4.​ Whether the speaker of parliament will compute and determine the
period of absence?
 135

Accordingly, the Appellate Division, after a hearing of some prominent

legal minds (‘amicus curiae’), gave its opinion.

Subordinate Courts & Tribunals

●​Lower Judiciary Separate from the Executive

Organs
In line with the landmark judicial decision by the Appellate Division in
Masder Hossain case back in 1999 the Caretaker Government headed by
Dr. Fakhruddin Ahmed amended the CrPC, 1898 in November, 2007
and along with these changes the lower judiciary was separated from the
organs of the executive. Although the term ‘executive magistrate’ still
exists in the CrPC, 1898, ‘executive magistrates’ are no longer vested
with any judicial functions; their functions are administrative in nature.
However, it is to be noted that by the Mobile Court Ordinance, 2007
(Ordinance No. 31 of 2007) some judicial powers have been given to the
executive magistrates.

●​ Bangladesh Judicial Service Commission

After November 1, 2007 the basic laws with regard to the separation of
judiciary and newly constituted Judicial Service Commission are as
follows:
1.​ Bangladesh Judicial Service Commission Rules, 2007.
2.​ Bangladesh Judicial Service Commission (Pay-Commission)
Rules, 2007.
 136

3.​ Bangladesh Judicial Service Commission (Constitution of Service,

Appointment to the Service, Suspension, Dismissal, and Removal)
Rules, 2007.
4.​ Bangladesh Judicial Service Commission (Posting, Promotion,
Grant of Leave, Control, Discipline and other Conditions of
Service) Rules, 2007
5.​ Code of Criminal Procedure (Amendment) Ordinance, 2008 [Act
in 2009]
6.​ Mobile Court Ordinance, 2007

●​ The CrPC Amendment Act, 2009 and Cognizance

Power of Executive Magistrates
The 9th parliament adopted and passed both Code of Criminal Procedure
Amendment Ordinances from the Caretaker Government, with one
major exception: Sub-section (4) of Section 190 of CRPC, which allows
the government to empower Executive Magistrates to take cognizance of
certain offenses and send them for trial to the appropriate court, with
specified reasons and a specified period.

This new sub-section, containing a non-obstante clause, has rendered the

law inconsistent with the directives in the Masder Hossain case. The
Judicial Service Association, as well as the legal community in general,
expected that the two ordinances would be passed into law by the
Parliament without any amendments, as this would align with the
directives in the Masder Hossain case. However, the parliamentary
standing committee on law, responding to mounting pressure from the
administrative cadre, recommended that the Parliament grant the
government the authority to empower executive magistrates to take
cognizance in ‘extraordinary circumstances’ or ‘in all circumstances’
and subsequently send the cases for trial to judicial magistrates. The
 137

Committee has also suggested that this power of cognizance be given to

executive magistrates for maintaining law and order, asserting that it has
nothing to do with the trial or punishment.

This reasoning seems straightforward, but the consequence will likely

lead to a very sordid picture in ensuring the rule of law in the country.
The strength of this seemingly simple logic of mere cognizance power is
further supported by the argument that the provisions in Article 22 of the
Constitution, on which the separation was based, are not judicially
enforceable.

●​ Cognizance Power & Separation of Judiciary

Giving cognizance power to executive magistrates will give rise to a
common question: Whether it will be an executive/ administrative power
or a judicial power. Our apex court has repeatedly held, in line with
consistent decisions in the Indian Subcontinent, that taking cognizance is
a judicial power. Any misuse or abuse of such power is to be corrected
through the judicial process. Typically, this is done by filing an
application in the High Court Division under section 561A of the CrPC.
However, an executive power cannot be questioned in a 561A
application.

Now, the question is how the apex court will exercise its supervisory
power if cognizance power is given to executive magistrates. The
accommodation of powers between judicial and executive magistrates
will be difficult. For example, if an executive magistrate refuses to take
cognizance of a petition or FIR, what will be the remedy for the
petitioner or informant? Where will they file an application against the
decision of the executive magistrate, given that an executive magistrate
is not under the jurisdiction of judicial authorities? Since taking
 138

cognizance is a judicial proceeding, a revisional application to a higher

judicial organ is always possible. However, if that power is exercised by
an executive magistrate, this will not be possible, potentially leading to a
power clash between the two authorities. For instance, if an executive
magistrate takes cognizance or sets another date for taking cognizance
and refuses a bail prayer, what will be the remedy for the accused
against the rejection of the bail prayer? Or where will they file a prayer
for consideration of bail?

Secondly, the CrPC is a general law, and the provisions of general law
are always subject to the provisions in special laws. Cognizance powers,
including the power of trial, are often given to executive or
administrative authorities by special laws like the Mobile Court
Ordinance, 2007, the Pure Food Ordinance, 1959, the Animals Slaughter
and Meat Control Act, 1957, the Prevention of Smoking Act, etc. The
parliament may give cognizance power to executive magistrates by
special law, like the Special Powers Act, if needed in special
circumstances. However, giving a blanket power to take cognizance in a
general law like the CrPC will mean a dependent dispensation of judicial
functions, as before.

Thirdly, the exercise of cognizance power by an executive magistrate

requires adherence to subsequent powers outlined in section 200 of the
CrPC. However, this could conflict with the precedent set by the Masder
Hossain case, where the Appellate Division emphasized the fundamental
separation between judicial and executive services. The verdict stated
that judicial service cannot be equated with civil executive and
administrative services, emphasizing their distinct and separate nature.

●​ Article 22 of the Constitution & Separation of Judiciary

 139

An argument is also made that, since Article 22 is not judicially

enforceable, the separation of the judiciary as implemented by the two
ordinances amending CrPC by the Caretaker Government is invalid.
However, it should be emphasized that the Appellate Division, while
delivering its judgment, did not mention that it was directing the
government to implement Article 22, even though Justice Latifur
Rahman referred to this Article in paragraph 78 of the judgment. The
decision and directions given in the Masder Hossain case are based on
the interpretation of Articles 115, 116, and 116A of the Constitution,
which are mandatory in nature. Furthermore, like Article 22, there are 18
articles in the Constitution that are not judicially enforceable. While
these articles are not enforceable in court, the Constitution itself states
that these directives should be applied when the Government and
Parliament are making laws, and they should guide the interpretation of
the Constitution and the country's laws. Fundamental principles
enunciated in the Constitution, like Article 22, are not mere homilies;
they are political commitments to the nation, and elected governments
are oath-bound to implement them on a priority basis.

It remains to be seen how the government will transfer this judicial

power to the executive magistrates. Once this power is transferred, the
question of its legality might be brought before the apex court by way of
a writ petition.

●​Classification of Criminal Courts

The ordinary criminal courts in Bangladesh are established under the
CrPC, 1898. According to Section 6(1) of the CrPC, in addition to the
Supreme Court and other legally constituted courts, there are two main
classes of criminal courts: Courts of Sessions and Courts of Magistrates.
 140

As per Section 7 of the CrPC every Sessions Division shall be a district

or consists of districts. Thus there might be less number of Sessions
Court compared to the total number of districts. A Metropolitan Area is
deemed to be a Sessions Division. The Government may alter the limit
or number of such divisions.

●​ Court of Sessions
Under Section 9(1) of the CrPC, the Government is bound to establish a
Court of Session for every sessions division, and appoint a judge of such
Court; and the Court of Session for [a] Metropolitan Area shall be called
the Metropolitan Court of Session.

Under Section 9(2), the Government can direct where the Court of
Session should hold its sittings through a general or special order in the
official Gazette. Until such an order is issued, the Court of Session will
continue to hold its sittings at their current locations.

Under Section 9(3), The Government may also appoint Additional

Sessions Judges and Assistant Sessions Judges to exercise jurisdiction in
one or more such Courts.

To be noted that there is an error in sub-section 9(3) as it did not omit the
word “Assistant Sessions Judge”. This error is easily detectable and
curable by reading Sub-section 4A(1) which specifies that “an Assistant
Sessions Judge shall be construed as a reference to a Joint Sessions
Judge.”

●​ Appointment of judges
 141

As per Sub-section 9(3A), Sessions Judge, Additional Sessions Judge

and Joint Sessions Judge shall be appointed from among the members of
the Bangladesh Judicial Service.

●​ Subordination of Joint Session Judges

All Joint Sessions Judges shall be subordinate to the Sessions Judge in
whose court they exercise jurisdiction (S. 17A).

●​ Jurisdiction of the Court of Session

The Court of Session exercises following types of jurisdiction: Original,
appellate, revisional and administrative.

1.​ Original Jurisdiction

In the context of a criminal court, original jurisdiction may refer to
two specific things: first, the jurisdiction to take cognizance of an
offense; and second, the jurisdiction to try an offense. These two
jurisdictions are completely different. The original jurisdiction of
the Court of Session pertains to the jurisdiction to try a case, not to
take cognizance of it. This is because cognizance is usually taken
by a Magistrate at the initial stage. After cognizance has been
taken, the case, if triable by the Court of Session, is sent to that
court for trial. Column 8 of the Second Schedule of the Criminal
Procedure Code lists the cases triable by the Court of Session, such
as murder, culpable homicide, and attempted suicide.

Regarding the taking of cognizance by the Courts of Sessions,

Section 193 of the CrPC specifies that, unless otherwise provided
by the Code or any other law, no Court of Session shall take
cognizance of any offense as a court of original jurisdiction unless
the accused has been sent to it by a duly empowered Magistrate.
 142

It is important to note that sometimes Parliament enacts special

laws that empower the Court of Session to take cognizance of and
try an offense. In such cases, the Sessions Judge takes cognizance
and tries the offense. For example, under the Drugs Act, 1940, and
the Antiquities Act, 1968, the special tribunal presided over by a
judge with the same power as a Sessions Judge can accept
complaints, take cognizance of the offense, and try the case.

2.​ Appellate Jurisdiction

Under Sections 406 and 408 of the CrPC the Court of Sessions has
been conferred appellate jurisdiction and has been given the status
of an appellate court.

1.​ A Sessions Judge hears appeal from the conviction and

sentence passed by the Joint Sessions Judge, Metropolitan
Magistrates, or any Judicial Magistrate of the first class [Sec.
408(3)].
2.​ Appeal to the Court of Sessions shall be heard by the
Sessions Judge or by an Additional Sessions Judge [Sec.
409].
3.​ If any magistrate passes any order under Section 118 to give
security for keeping the peace or for good behavior, appeal
against such order has to be made before the Sessions Judge
[Sec. 406].
4.​ A second appeal is not permissible from a judgment and
order made by a Sessions Judge in an appeal. However, a
revision against the Sessions Judge's decision may be filed to
the High Court Division [Section 404 and 561A, CrPC].
 143

3.​ Revisional Jurisdiction

Sections 435, 436, and 439A of the CrPC basically provide that a
Sessions Judge may exercise the power to call for records of
inferior courts, order inquiries, report to the High Court Division,
and exercise the power of revision. It was held in Nurul Huda v.
Bahauddin & Others, 9 BLD (HCD) 271, that the power of
revision is given to the Sessions Judge, and not to the Court of
Session. This revisional power is exercisable only by two persons:
the Sessions Judge and the Additional Sessions Judge. Under
Sub-section (3) of Section 439A, an Additional Sessions Judge
shall have and may exercise all powers of a Sessions Judge under
this chapter, which may be transferred to him under any general or
special order of the Sessions Judge.

Under Section 435 of the CrPC, a Sessions Judge may call for and
examine the records of any inferior criminal court within his
jurisdiction for the purpose of satisfying himself as to the
correctness, propriety, or legality of the finding, sentence, or order,
and the regularity of any proceeding before such subordinate court.

Under Section 439A, the Sessions Judge has the power of revision
in case of any proceeding the record of which has been called for.
The revisional power under section 439A may be transferred to the
Additional District Judge and if so transferred, he will exercise all
powers of a Sessions Judge.

●​ Jurisdiction As to Transfer or Withdraw Cases

1.​ Under its administrative and supervisory power the Sessions
Judge may order that any particular case be transferred from
 144

one criminal court to another criminal court or his Sessions

Division (Section 526B).
2.​ A Sessions Judge may withdraw any case from, or recall any
case that he has assigned to, any Joint Sessions Judge
subordinate to him. Similarly, he may recall any case or
appeal that he has assigned to an Additional Sessions Judge.
By doing so, he may try the case or hear the appeal in his
own court or assign it to another court (Section 528).

●​ Court of Additional & Joint Sessions Judge

It is to be mentioned that the CrPC refers only to the Court of Session
and not to the Court of Additional or Joint Sessions Judge. This is
because the Additional Sessions Judge and Joint Sessions Judge are not
separate courts but are part of the Sessions Court. However, the CrPC
provides different sentencing powers for the Additional Sessions Judge
and Joint Sessions Judge.

●​ Sentences which Sessions Judges may pass

Section 31 of the CrPC provides following provisions with regard to
sentences which the Court of Session may pass:

1.​ A Sessions Judge or Additional Sessions Judge may pass any

sentence authorized by law, but any sentence of death passed by
such a judge shall be subject to confirmation by the High Court
Division. [Sub-section 31(2)]
2.​ A Joint Sessions Judge may pass any sentence authorized by law,
except a sentence of death or of transportation for a term exceeding
ten years or of imprisonment for a term exceeding ten years.
[Sub-section 31(3)]
 145

●​ The Court of Magistrates

Sub-section 6(2) of the CrPC provides for two types of magistrate
courts: Judicial Magistrates and Executive Magistrates. In addition to
these, the forms of Special Magistracy and Justices of Peace have also
been retained.

1.​ Judicial Magistrates

Sub-section 6(3) provides that there shall be following four types of
Judicial Magistrates:
1.​ Chief Metropolitan Magistrate in Metropolitan areas and Chief
Judicial Magistrate in other areas.
2.​ First Class Magistrate who is also known as Metropolitan
Magistrate in Metropolitan areas.
3.​ Second Class Magistrates; and
4.​ Third Class Magistrates.

The explanation of Section 6 specifies that the word “Chief Metropolitan

Magistrate” and “Chief Judicial Magistrate” shall include “Additional
Chief Metropolitan Magistrate” and “Additional Chief Judicial
Magistrate” respectively. This means Additional Chief Metropolitan
Magistrate or Additional Chief Judicial Magistrate are not any separate
courts; they are part of the Metropolitan Magistrate and Chief Judicial
Magistrate. However, the Additional Chief Metropolitan Magistrate or
Additional Chief Judicial Magistrate may exercise the same power of
sentence as that of the Chief Metropolitan Magistrate and Chief Judicial
Magistrate.

●​ Special Judicial Magistrate

Sub-sections 12(3) and (4) provide following with regard to Special
Judicial Magistrates:
 146

1.​ The government, in consultation with the High Court Division, can
delegate to any Magistrate the powers granted to Judicial
Magistrates of the first, second, or third class under the Code of
Criminal Procedure. This delegation can be for specific cases,
certain classes of cases, or for cases in general within a local area
outside a Metropolitan Area [Sub-sec. 12(3)].

2.​ The Magistrate on whom the powers under Sub-section (3) are
conferred shall be called Special Magistrates and shall be
appointed for such term as the Government may, in consultation
with the High Court Division, by general or special order direct
[Sub-sec. 12(4)].

●​ Special Metropolitan Magistrate

Sub-sections 12(5) and (6) provide following with regard to Special
Metropolitan Magistrates:

1.​ The government, in consultation with the High Court Division, can
delegate to any Metropolitan Magistrate the powers granted by the
Code of Criminal Procedure in specific cases, classes of cases, or
generally in a Metropolitan Area. [Sub-sec. 12(5)].

2.​ The persons on whom the powers under sub-section (5) are
conferred shall be called Special Metropolitan Magistrates and
shall be appointed for such term as the Government may in
consultation with the High Court Division by general or special
order direct [Sub-sec. 12(6)].

●​ Jurisdiction & Power of Magistrates

 147

●​ Power of Trial and Awarding Sentence

According to Section 32 of the CrPC the Courts of Magistrates
may pass sentences as follows:

a.​ Courts of Metropolitan and of Magistrates of the first class

can impose
○​ imprisonment for a term not exceeding five years;
○​ such solitary confinement as authorized by law;
○​ fine not exceeding ten thousand taka;
○​ whipping.

b.​ Courts of Magistrates of the second class can impose

○​ imprisonment for a term not exceeding three years;
○​ such solitary confinement as authorized by law;
○​ fine not exceeding five thousand taka;

c.​ Court of Magistrates of the third class can impose

○​ imprisonment for a term not exceeding two years;
○​ fine not exceeding two thousand taka.

d.​ To award imprisonment in default of fine: When a

convicted person fails to pay a fine imposed upon them, the
law allows for additional imprisonment, in accordance with
Section 3, under the following conditions:
○​ The term of imprisonment in default of the fine must
not exceed the Magistrate's authority under the CrPC.
○​ In cases where an offense is punishable with both
imprisonment and a fine, the imprisonment in default of
the fine cannot exceed one fourth of the maximum
 148

imprisonment that the Magistrate is empowered to

impose.
○​ For offenses punishable with a fine only, the
imprisonment in default of the fine must be simple.

●​ Extra-ordinary Enhanced Power [Sec. 29C and 33]

Section 29C of the CrPC deals with enhanced power to magistrates
with regard to trial of offenses not punishable with death. It
specifies that the Government may in consultation with the High
Court Division:

a.​ invest the Chief Metropolitan Magistrate, Chief Judicial

Magistrate or any Additional Chief Judicial Magistrate with
power to try as a Magistrate all offenses not punishable with
death;
b.​ invest Metropolitan Magistrate or any Magistrate of the first
class with power to try as a Magistrate all offenses not
punishable with death or with transportation or with
imprisonment for a term exceeding ten years.

In line with these provisions of enhanced power of trial by

magistrates section 33A of the Code further provides for enhanced
power imposing sentence by Magistrates which is as follows:

Higher powers of certain Magistrate: The Court of a Magistrate,

specially empowered under section 29C, may pass any sentence
authorized by law, except a sentence of death or of transportation
or imprisonment for a term exceeding seven years.

●​ Appeal from the Magistrates' Courts

 149

An appeal may be lodged against an order or a sentence imposed

by a magistrate. However, appeals against sentences by different
magistrates would proceed as follows:

1.​ An appeal from a sentence passed by any Magistrate of the

second or third class shall lie with the Chief Judicial
Magistrate [Sec. 407].
2.​ Appeals from a sentence passed by any First Class Magistrate
lie with the Court of Session [Sec. 408(a)].
3.​ Appeals from a sentence passed by a Magistrate for an
offense under Section 124A of the Penal Code will be
directed to the High Court Division [Section 408(b)].

●​ Court of Metropolitan Magistrates

The CrPC provides separate provisions for courts of Metropolitan
Magistrates under its Sections 18 to 21. All Metropolitan Magistrates
also hold the position of judicial first-class magistrates.

●​ Appointment of Metropolitan Magistrates

Section 18 provides that in every Metropolitan Area, the Chief
Metropolitan Magistrate, Additional Chief Metropolitan Magistrate, and
other Metropolitan Magistrates shall be appointed from among persons
employed in the Bangladesh Judicial Service. Sub-section (2) provides
that the Government may appoint one or more Additional Chief
Metropolitan Magistrates, and such Additional Chief Metropolitan
Magistrates shall have all or any of the powers of the Chief Metropolitan
Magistrate under this Code or under any other law for the time being in
force, as the Government may direct.

●​ Chief Metropolitan Magistrate

 150

Section 21 states that the Chief Metropolitan Magistrate holds authority

over the powers granted to Metropolitan Magistrates within their
jurisdiction. They can also create rules, with prior government approval,
to regulate various aspects, including court procedures, the
establishment of benches, sitting times, resolving disputes among
Metropolitan Magistrates, and other matters typically under the purview
of a Chief Judicial Magistrate.

●​ Executive Magistrates
The following provisions have been made in Section 10 regarding
Executive Magistrates:

1.​ In every district and Metropolitan Area, the Government shall

appoint as many persons as it deems fit to be Executive
Magistrates and shall designate one of them as the District
Magistrate.
2.​ The Government may also appoint any Executive Magistrate as an
Additional District Magistrate, who shall possess all or some of the
powers of a District Magistrate.
3.​ The Government or the District Magistrate may, from time to time,
define local areas within which Executive Magistrates may
exercise their powers.
4.​ The Government may appoint any member of the Bangladesh Civil
Service (Administration) as an Executive Magistrate and confer
Executive Magistrate powers upon them.
5.​ All persons appointed as Assistant Commissioners, Additional
Deputy Commissioners, or Upazila Nirbahi Officers in any district
or Upazila shall be Executive Magistrates and may exercise
Executive Magistrate powers within their respective local areas.
 151

6.​ The Government may grant a Commissioner of Police all or some

of the powers of an Executive Magistrate within a Metropolitan
area.
7.​ Executive Magistrates shall not perform judicial functions but
rather administrative or executive tasks, such as granting licenses,
sanctioning or withdrawing prosecutions, etc. [Section 4(2)(b)].

●​ Special Executive Magistrates

In Sub-sections 12(1), (2), and (3) of the CrPC, provisions regarding
Special Executive Magistrates are outlined as follows:

1.​ The Government may confer upon any person all or any of the
powers held by an Executive Magistrate. The individuals receiving
these powers shall be termed Special Executive Magistrates and
shall be appointed for a term specified by the Government through
general or special order directly.
2.​ These Magistrates will be appointed to handle cases or a specific
class of cases in any local area outside a Metropolitan area.
3.​ No power of special Magistracy shall be granted to any police
officer below the rank of Superintendent of Police.

●​ Justices of the Peace

Sections 22 and 25 of the CrPC provide for provision of justices of the
peace.

Section 22: [The Government] may, by notification in the official

Gazette, appoint such persons resident within Bangladesh and not being
the subjects of any foreign State as it thinks fit to be Justices of the
Peace within and for the local area mentioned in such notification.
 152

Section 25: In virtue of their respective offices, the Judges of the

[Supreme Court] are Justices of the Peace within and for the whole of
Bangladesh, Sessions Judges, [Chief Judicial Magistrate] and
Metropolitan Magistrates] are Justices of the Peace within [their
respective jurisdictions].

●​Classification of Civil Courts

Section 3 of the Civil Courts Act 1887 as amended by the Civil Courts
(Amendment) Act 2012 provides for following five classes of civil
courts, namely:

1.​ The Court of the District Judge;

2.​ The Court of Additional District Judge;
3.​ The Court of the Joint District Judge;
4.​ The Court of the Senior Assistant Judge; and
5.​ The Court of the Assistant Judge.

Every court mentioned above is a separate court and has jurisdiction

assigned to it by the Civil Courts Act or any other law which may be
either territorial, original jurisdiction, appellate jurisdiction or
transferred jurisdiction (can hear suit or cases when transferred to it).

●​ Number of Judges
The Government may alter the number of District Judges, Additional
District Judges, Joint District Judges, Senior Assistant Judges and
Assistant Judges now fixed. [Section 4 of the Civil Courts Act 1887]

●​ Administrative Control of Courts

Subject to the superintendence of the High Court Division, the District
Judge shall have administrative control over all the Civil Courts under
 153

this Act within the local limits of his jurisdiction. [Section 9 of the Civil
Courts Act 1887]

●​ Subject Matter Jurisdiction of Civil Courts

Section 9 of the Code of Civil Procedure, 1908 states that courts have
jurisdiction over all civil suits unless explicitly or implicitly barred. The
explanation part clarifies that disputes over property or office are
considered civil suits, even if they involve questions of religious rites or
ceremonies.

In legal proceedings, if the primary issue revolves around caste or

religious matters, the suit is not deemed of a civil nature. However, if
these factors are secondary to a civil matter such as property rights or
civil liberties, and the resolution of the civil issue depends on addressing
the caste or religious question, the court will address these subsidiary
questions to effectively resolve the main civil matter at hand.

Suits of Civil Nature: Illustrations

Suits relating to rights to property Suit for restitution of conjugal
Suits relating to rights of worship; rights;
Suits relating to taking out of Suits for dissolution of marriages;
religious processions; Suits for rents;
Suits relating to right to share in Suits for or on accounts;
offerings; Suits for rights of franchise;
Suits for damages for civil Suits for rights to hereditary
wrongs; offices;
Suits for specific performance of Suits for rights to Yajmanvritis;
contracts or for damages for Suits against wrongful dismissals
breach of contracts; from service and for salaries, etc.
Suits for specific reliefs;
 154

●​ Pecuniary Jurisdiction
Section 6 of the CPC states that unless explicitly stated otherwise,
nothing in the section grants any Court jurisdiction over suits where the
amount or value of the subject matter exceeds the court's pecuniary
limits.

●​ Appeals: Wherefrom and to Which Court

An appeal from a decree or order of a District Judge or Additional
District Judge shall lie to the High Court Division. However, an appeal
shall not lie to the High Court Division from a decree or order of an
Additional District Judge in any case where, if the decree or order had
been made by the District Judge, an appeal would not lie to that court
(Section 20 of the Civil Courts Act 1887).

An appeal from a decree or order of a Joint District Judge shall lie:

a.​ to the District Judge where the value of the original suit does not
exceed Taka 5 lakh; and
b.​ to the High Court Division in all other cases.

An appeal from a decree or order of a Senior Assistant Judge or

Assistant Judge shall lie to the District Judge.

Where appeals lie to the District Judge and the District Judge has
assigned the function of receiving appeals to the Additional District
Judge, the appeals may be directly preferred to the Additional District
Judge (Section 21 of the Civil Courts Act 1887).

There is no provision for a second appeal in the CPC. The provisions for
a second appeal as stated in Sections 100, 101, and 103 have been
omitted by the Law Reforms Ordinance, 1978.
 155

●​ Territorial Jurisdiction
Section 13 of the Civil Courts Act, 1887 deals with the local or
territorial limits of civil courts.

Power to fix local limits of jurisdiction of courts:

1.​ The Government may, by notification in the official Gazette, fix
and alter the local limits of the jurisdiction of any Civil Court
under this Act.

2.​ In cases where multiple Joint District Judges, Senior Assistant

Judges, or Assistant Judges share the same local jurisdiction, the
District Judge has the authority to allocate civil cases to each of
them based on their respective roles and subject to any orders from
the High Court Division.

3.​ If a District Judge assigns civil cases to Joint District Judges,

Senior Assistant Judges, or Assistant Judges, those judges' decrees
or orders won't be invalid solely because the cases partially arise
outside the local area, as long as the place is within the local limits
set by the Bangladesh Government.

4.​ If a Judge of a Court of Small Causes is also appointed as a Joint

District Judge, Senior Assistant Judge, or Assistant Judge, they are
considered as such within the context of this section.

5.​ The present local limits of the jurisdiction of every Civil Court
under this Act shall be deemed to have been fixed under this
section.
 156

●​ Suits to Be Instituted Where Subject Matter Situate

Section 16 of CPC outlines the jurisdiction for different types of suits
concerning immovable and movable property. It states that suits related
to immovable property must be filed in the court where the property is
located or where the cause of action arises. Exceptions are made for suits
where relief can be obtained through the defendant's personal obedience,
allowing them to be filed where the defendant resides or conducts
business. The explanation clarifies that “property” refers to property
located in Bangladesh.

●​ Suits for immovable property situate within jurisdiction of

different Courts
Section 17 of CPC allows for suits concerning immovable property
located within the jurisdictions of different courts to be filed in any court
where any portion of the property is situated. However, the court must
have the jurisdiction to adjudicate the entire claim based on the value of
the subject matter of the suit.

●​ Place of institution of suit where local limits of jurisdiction of

Courts are uncertain
Section 18 of CPC addresses situations where it's uncertain which court
has jurisdiction over immovable property. If there's uncertainty, any of
the potentially relevant courts can proceed with a suit related to the
property. However, this is subject to the court's competence in terms of
the nature and value of the suit. If no statement regarding uncertainty is
recorded and an objection is raised later, the appellate or revisional court
can only intervene if there was no reasonable ground for uncertainty at
the time of suit initiation and if there has been a resulting miscarriage of
justice.
 157

●​ Suits for compensation for wrongs to person or movables

Section 19 of CPC states that if a suit involves compensation for harm to
a person or movable property, and the wrong occurred within one court's
jurisdiction while the defendant resides, carries on business, or works for
gain within another court's jurisdiction, the plaintiff can choose to file
the suit in either court.

●​ Special Jurisdiction
Chapter IV with Sections 22 to 25A of the Civil Courts Act, 1887 deals
with special jurisdiction. This chapter basically covers the following
types of special jurisdictions:

1.​ Power of the District Judges to transfer appeals (Sec. 22);

2.​ Jurisdiction imposed by general or special order by the High court
Division (Sec. 23);
3.​ Power to invest Joint District Judge and Senior Assistant Judge or
Assistant Judge with Small Causes Court Jurisdiction (Sec. 25).

These three types of jurisdictions are discussed below:

●​ Jurisdiction to Transfer Appeals

Section 22 provides the following rule with regard to transfer of appeals
by the District Judge:

1.​ Under its administrative control a District Judge may transfer to

any Joint District Judge any appeals pending before him from the
decrees or orders of Senior Assistant Judge or Assistant Judge.
 158

2.​ The District Judge may withdraw any appeal so transferred, and
either hear and dispose of it himself or transfer it to a Court under
his administrative control competent to dispose of it.

3.​ Additional District Judges discharge functions of a District Judge

which the District Judge may assign to them and in that case the
Additional District Judges shall exercise the same powers as the
District Judge (Section 8).

●​ Jurisdiction imposed by general or special order by the High

Court Division
Section 23 provides that the High Court Division may, by general or
special order, authorize any Joint District Judge or Senior Assistant
Judge or Assistant Judge to take cognizance of, or any District Judge to
transfer to a Joint District Judge or Senior Assistant Judge or Assistant
Judge under his administrative control any class of those proceedings
specified in the order.

The District Judge may withdraw any such proceedings taken

cognizance of by, or transferred to, a Joint District Judge or Senior
Assistant Judge or Assistant Judge, and may either himself dispose of
them or transfer them to a Court under his administrative control
competent to dispose of them.

●​ Power to invest Joint District Judge and Senior Assistant

Judge or Assistant Judge with Small Causes Court Jurisdiction
Section 25 provides that the Government may, by notification in the
official gazette, confer, within such local limits as it thinks fit, upon any
Joint District Judge or Senior Assistant Judge or Assistant Judge the
jurisdiction of a Judge of a Court of Small Causes under the Provincial
 159

Small Cause Courts Act, 1887, for the trial of suits, cognizable by such
Courts, upto such value not exceeding twenty thousand taka in the case
of a Joint District Judge or ten thousand taka in the case of a Senior
Assistant Judge whose jurisdiction has been extended under Sub-section
(2) of section 19 or six thousand taka in the case of any other Assistant
judge as it thinks fit, and may withdraw any jurisdiction so conferred.

●​ Jurisdiction to Transfer or Withdrawal of Suits

According to section 24 of the CPC the District Judge may, on the
application of any party or suo motu, at any stage:

1.​ transfer any suit, appeal or other proceeding pending before it for
trial or disposal to any court subordinate to it;
2.​ withdraw any suit or appeal or other proceeding pending in any
subordinate court and transfer the same for trial or disposal to any
court subordinate to it;
3.​ retransfer the same for trial or disposal to the court from which it
was withdrawn.

●​ The Court of District Judge

This court which is next in the hierarchy down from the High Court
Division is headed by a District Judge.

1.​ The District Judge's pecuniary jurisdiction is unlimited.

2.​ No suit is filed in the Court of the District Judge or the Additional
District Judge as a court of original jurisdiction. This is because of
the provision in Section 15 of the Code of Civil Procedure that
every suit must be instituted in the court of the lowest grade
competent to try it. However, under various special laws, they do
 160

have original jurisdiction. For example, Section 73 of the Trade

Marks Act, 1940, grants the District Judge original jurisdiction to
handle cases under this law.

3.​ Under sections 8, 11, 22, 23 etc. of the Civil Courts Act 1887 he
has power to delegate his function or transfer appeal to the
Additional District Judge or any other civil court under his
administrative control.

4.​ Subject to the superintendence of the High Court Division, the

District Judge shall have administrative control over all the Civil
Courts under the Civil Courts Act 1887 within the local limits of
his jurisdiction [Section 9].

5.​ This court has power to try, transfer, withdraw any suit, appeal or
other proceedings in any civil courts below the High Court
Division [Section 24 Civil Procedure Code)].

6.​ This court has also jurisdiction with regard to probate and letter of
administration. In some districts there are Courts of Additional
District Judges who try and dispose of cases which have been
transferred by the District Judge.

7.​ The District Judge has been given revisional power by Section 115
of the Code of Civil Procedure in 2003. To this effect it is provided
in Section 115 that where an order has been passed by a Court of
Joint District Judge, Senior Assistant Judge, or Assistant Judge
from which no appeal lies, and if such court appears to have
committed any error of law resulting in an error in such order
 161

occasioning failure of justice, the Court of District Judge may

revise such order and, make such order as it may thinks fit.

8.​ The District Judge has pecuniary jurisdiction of taka five lakhs
valuation of the subject matter giving rise to appeal or revision. In
all other cases where the valuation of the subject matter of the
proceeding exceeds taka five lakhs the revisional application
originating therefrom shall lie to the High Court Division under
Sub-section (1) of Section 115 of the CPC (Bangladesh v A.H.M.
Khurshed Ali, 14 MLR (AD) 57).

9.​ Every District Judge is appointed as a Session Judge as well to

adjudicate criminal matters in any Sessions Division.

●​ Court of Additional District Judge

1.​ The judicial functions of an Additional District Judge are similar to
those of a District Judge.

2.​ He tries those cases which are transferred to his court from the
Court of the District Judge.

3.​ Appeal from this court normally lies to the High Court Division.
However, an appeal shall not lie to the High Court Division from a
decree or order of an Additional District Judge in any case in
which, if the decree or order had been made by the District Judge,
an appeal would not lie to the High Court Division (Section 20).

4.​ Additional District Judges are appointed as Additional Session

Judges as well to adjudicate criminal matters.
 162

●​ Court of Joint District Judge

1.​ This court exercises two types of jurisdictions: Original and
Appellate (transferred).

2.​ The Joint District Judge's pecuniary jurisdiction in the original suit
is unlimited. This court has jurisdiction to try those cases whose
value exceeds taka 25 lakh. In other words, when the value of a
claim exceeds Taka 25 lakh, it must be filed in the Joint District
Judge's court. This requirement arises from the combined effect of
Section 18 of the Civil Courts Act 1887 and Section 15 of the
Code of Civil Procedure. Section 15 of the Code of Civil
Procedure states that every suit must be instituted in the court of
the lowest grade competent to try it. Section 18 of the Civil Courts
Act 1887 specifies that, subject to the provisions of Section 15 of
the CPC, the jurisdiction of a District Judge or Joint District Judge
extends to all original suits.

3.​ Appeal from this court will lie to the District Judge where the
value of the original suit did not exceed taka 25 lakh. In case the
value exceeds taka 25 lakh, appeal will lie to the High Court
Division.

4.​ The District Judge may transfer to a Joint District Judge under his
administrative control any pending appeal from the decrees or
orders of a Senior Assistant Judge or Assistant Judge (Section 22).

5.​ As per Section 25 of the Civil Courts Act, 1887, this court is also
empowered to act as Small Causes Court.
 163

6.​ The High Court Division, with government approval, can redirect
appeals from Senior Assistant Judges or Assistant Judges to
specific Joint District Judges via an Official Gazette notification,
altering the course of appeal proceedings accordingly.

7.​ All Joint District Judges are also appointed as Joint Session Judges
to adjudicate criminal matters.

●​ Senior Assistant Judges' Court

This court has original jurisdiction of a claim the value of which does
not exceed taka 25 lakh [Section 19 of the Civil Courts Act 1887].
Appeal from this court lies to the Court of the District Judge. This court
is also empowered to act as Small Causes Court [Section 25 of the Civil
Courts Act], Family Court under the Family Courts Ordinance, 1985 and
the Election Tribunal under the Local Government (Upazila Parishad)
Ordinance, 1983.

●​ Assistant Judges' Court

This court stands at the base of the hierarchy of civil courts. Its original
jurisdiction is limited to a claim the value of which does not exceed taka
15 lakh [Section 19 of the Civil Courts Act 1887]. Appeal from this
court lies to the Court of District Judge. This court is also empowered to
act as Small Causes Court. This court has also been invested with the
revisional power in petty civil matters coming from Village Courts under
the Village Courts Ordinance 1976 [Section 4(2)].

●​Tribunals
A tribunal is an adjudicatory body or court of justice with the following
key characteristics:
 164

1.​ Adjudicative Function: Tribunals are tasked with resolving

disputes or making decisions on specific legal matters.

2.​ Specialization: Tribunals often specialize in particular areas of

law or industry, such as labor, tax, or environmental issues.

3.​ Independence: Tribunals are usually independent bodies, separate

from the executive and legislative branches, to ensure impartiality
in decision-making.

4.​ Quasi-Judicial Nature: Tribunals exercise powers similar to

courts but may have more flexible procedures and rules of
evidence.

5.​ Expertise: Members of tribunals often possess specialized

knowledge or expertise relevant to the matters they adjudicate.

6.​ Administrative Functions: Tribunals may have administrative

responsibilities alongside their adjudicative role, such as licensing
or regulatory duties.

7.​ Accessibility: Tribunals are often designed to be more accessible

and less formal than traditional courts, allowing parties to represent
themselves more easily.

8.​ Binding Decisions: The decisions of tribunals are typically legally

binding and enforceable, subject to appeal in higher courts in some
cases.

●​ Why Tribunals Are Different from Courts

 165

Courts and tribunals serve as mechanisms for dispute resolution, but

they differ significantly in their nature, purpose, composition,
jurisdiction, accessibility, and operational characteristics. Here's a
detailed comparison:

1.​ Nature & Purpose

Courts are formal judicial institutions established by the constitution or
statute. Their primary purpose is to interpret and apply the law, resolve
disputes, and administer justice. They handle a wide range of cases,
including civil, criminal, constitutional, and administrative matters.

Tribunals are quasi-judicial bodies established by statute. They are

created to handle specific types of disputes, often in specialized areas
like employment, immigration, taxation, and administrative law.
Tribunals aim to provide a more streamlined and accessible means of
resolving disputes compared to courts.

2.​ Composition
Courts are typically presided over by judges who are legally trained and
appointed based on specific qualifications and procedures. Some courts,
particularly in criminal cases, may involve juries composed of
laypersons.

Tribunals may be composed of a mix of legally trained members and

laypersons with expertise relevant to the tribunal's area of jurisdiction.
They often have a legally qualified chairperson, but other members
might include professionals or experts in the relevant field.

3.​ Jurisdiction
 166

Courts have general jurisdiction and can hear a wide array of cases,
subject to limitations set by law and higher courts (appellate courts) have
the authority to review decisions from lower courts.

Tribunals have limited and specialized jurisdiction, restricted to

particular types of disputes as defined by their enabling legislation.
Some tribunals' decisions may be final, while others can be appealed to
higher courts or specific appellate tribunals.

4.​ Accessibility & Informality

Courts can be less accessible due to complex procedures, higher costs,
and longer timelines and court proceedings are formal, with strict
adherence to procedural rules and evidence law.

Tribunals are generally more accessible, designed to be user-friendly,

cost-effective, and quicker in resolving disputes and tribunal procedures
are often more informal and flexible, allowing for a less intimidating
environment for parties.

5.​ Flexibility
Courts operate with a high degree of procedural rigidity and adherence
to precedent (stare decisis) and there is limited flexibility in procedural
matters, aiming to ensure consistency and fairness in the application of
the law.

Tribunals have more flexibility in their procedures, allowing them to

adapt processes to suit the nature of the dispute. They may adopt less
formalistic approaches to evidence and procedure, focusing on achieving
fair outcomes efficiently.
 167

●​ Different Types of Tribunals

Tribunals are classified into statutory and domestic based on the nature
of their subject matter. Statutory tribunals handle matters of public
concern, such as tax disputes or employment issues involving the
government. Domestic tribunals, on the other hand, deal with private
matters, like those overseen by professional bodies or trade unions.

Statutory tribunals derive their authority from statutes and focus on

public interest issues. Examples include tax appeal tribunals and
administrative tribunals.

Domestic tribunals handle disputes within private or professional

organizations, such as the disciplinary committees of the Bar Council or
trade unions. These tribunals' powers are controlled by ordinary courts to
ensure they comply with natural justice and do not exceed their
authority. When created by statute, these tribunals are technically
statutory.

The jurisdiction of statutory tribunals is based on statutes or related

rules, while domestic tribunals' jurisdiction stems from the contractual
agreement between their members. Remedies like declaration or
injunction may apply to non-statutory domestic tribunals, but certiorari,
a type of judicial review, is only applicable if the tribunal is statutory.

●​ Control by the Courts of Tribunals

The modern system of administrative tribunals originated from the
French droit administratif, where these tribunals operate independently
of ordinary courts and are not subject to judicial review by the highest
court. However, in commonwealth countries, particularly the UK, the
implementation of such tribunals includes safeguards to ensure
 168

administrative justice. Following the Donoughmore Committee's 1932

recommendations, the UK maintains the High Court's supervisory
jurisdiction over tribunals, compelling them to adhere to natural justice.
Consequently, the High Court can issue prerogative writs (certiorari,
mandamus, and prohibition) to review tribunal decisions.

●​ Administrative Tribunal
The Administrative Tribunals Act of 1980 was enacted in line with the
Constitution (Article 117) to establish administrative tribunals. Later the
Administrative Tribunals Rules of 1982 were created to detail
application procedures, court fees, and other specifics. The Act
established two types of tribunals: Administrative Tribunals and an
Administrative Appeal Tribunal. However, there were contradictions in
the Act:

1.​ Section 4 granted jurisdiction to Administrative Tribunals over

matters previously under civil courts and the High Court Division,
while Section 10 barred these courts from jurisdiction.
2.​ Section 6 made the decisions of the Administrative Appellate
Tribunal final, not subject to the appellate jurisdiction of the
Supreme Court's Appellate Division.

Bangladesh currently has seven administrative tribunals: Three in Dhaka

and one each in Barishal, Bogra, Chittagong, and Khulna. A 1991
Amendment to the Administrative Tribunals Act 1980 introduced
section 6A, aligning the finality of the Administrative Appellate
Tribunal's decisions with the provisions of article 103 of the
Constitution, making them subject to judicial review by the Appellate
Division of the Supreme Court. This amendment supports the rule of law
 169

but, as an ordinary law, it can be repealed by the government.

Constitutional changes are suggested for a more permanent solution.

●​ Composition
As per Section 3 of the Administrative Tribunals Act, 1980, the Tribunal
consists of one member appointed by the Government from among
persons who are or have been District Judges.

●​ Jurisdiction
The Tribunal has exclusive jurisdiction to hear and determine
applications made by any person in the service of the Republic
concerning the terms and conditions of their service.

It also has exclusive jurisdiction to hear and determine applications

made by any person in the service of any statutory public authority
specified in the Schedule to the Act, in respect of the terms and
conditions of their service (Section 4).

A person in the service of the Republic or any statutory public authority

has the right to apply to the Administrative Tribunal against an order,
decision, or action of the departmental authority relating to any terms
and conditions of their service. The departmental higher authority is
bound to give a decision within two months from the date on which the
appeal or application was made (Section 4).

●​ Powers & Procedures

A Tribunal shall have all the powers of Civil Court, while trying a suit
under the Code of Civil Procedure, 1908 in respect of the following
matters namely:
 170

1.​ Summoning and enforcing the attendance;

2.​ The discovery and production of document:
3.​ Evidence on affidavit;
4.​ Requisitioning any public record;
5.​ Issuing commissions for the examination of witnesses;
6.​ Such other matters as may be prescribed.

●​ Composition of Administrative Appellate Tribunal

The constitution of the Administrative Appellate Tribunal as envisaged
in Section 5 of the Act has undergone several changes. As the provision
stands now the Appellate Tribunal consists of one Chairman and two
other members. The Chairman is appointed from among the persons who
are or have been judges of the Supreme Court. Of two members one is a
Joint Secretary and the other is a District Judge. The decision of the
Appellate Tribunal has to be by majority of its members.

●​ Jurisdiction
The Appellate Tribunal will have jurisdiction to hear and
determine appeals from any order or decision of an Administrative
Tribunal.

Any person aggrieved by an order or decision of an Administrative

Tribunal may, within three months from the date of making of the
order or decision, prefer an appeal to the Administrative Appellate
Tribunal (Section 6).

Against the decision of the Administrative Appellate Tribunal a

party may apply to the Appellate Division of the Supreme Court
for leave to appeal as per article 103 of the Constitution (Section
6A).
 171

●​ Taxes Appellate Tribunal

The Appellate Tribunal established under the Income Tax Ordinance,
1984, is a tribunal, but its functions are not in the nature of
quasi-judicial; it has got all the trappings of a court though it is not
manned by purely judicial officers. It consists of both administrative
(technical) and judicial members and as such it is a quasi-judicial body
from the view point of its formation.

According to Section 11 of the Ordinance the Tax Appellate Tribunal

shall consist of a President and such other judicial and accountant
members as the Government may from time to time appoint. A judicial
member shall be a person who is or has been a District Judge or who has
practiced as an advocate in a court not lower than that of a District and
Sessions Judge for a period not less than ten years.

●​ Appeal
An appeal against order of Deputy Commissioner of Taxes and
Inspecting Joint Commissioner will lie to the Appellate Joint
Commissioner of Taxes if the assessee is not a company. If the assessee
is a company then appeal shall lie to the Commissioner (Appeals).
[Section 153]

Any person aggrieved by the order of Tax Recovery Officer under

section 139 may within 30 days appeal to the Inspecting Joint
Commissioner to whom the TRO is subordinate and the decision of the
IJC on such appeal shall be final. [Section 157]
 172

Against an order of an Appellate Joint Commissioner or the

Commissioner (Appeals) appeal will lie to the Appellate Tribunal.
[Section 158]

Against the order of the Appellate Tribunal reference shall lie to the
High Court Division of the Supreme Court. [Section 160]

Appeal from the decision of the High Court Division to the Appellate
Division will lie only with the certificate of the High Court Division as
specified in Section 162.

●​ Tribunals and Labour Courts under the Labour Code

2006
●​ Three Routes of Dispute Resolution
The Labour Code 2006 offers both non-judicial and mediation-based
mechanisms, as well as judicial mechanisms, for resolving industrial
disputes. Disputes can follow three routes: non-judicial mediation
(negotiation, conciliation, arbitration), non-judicial via the judicial route
(negotiation, conciliation, Labour Court to Appellate Division), or
completely judicial (Labour Court to Appellate Division). The Labour
Appellate Tribunal, created by the Labour Code, is the highest judicial
body, and the jurisdiction of the High Court Division and the Appellate
Division can only be invoked through the constitutional writ application
process, not through the usual adjudication under the Code. Therefore,
the two highest judicial bodies are not explicitly mentioned or created in
the Code.

●​ Negotiation
If a dispute is likely between an employer and an employee the
employer or the Collective Bargaining Agent (CBA) shall
 173

communicate the same in writing to the other party. Within ten

days the parties will try to resolve the matter by way of
negotiation; if a settlement is reached, a memorandum shall be
recorded accordingly [Sub-section 210(2)(3)].

●​ Conciliation
Failing a negotiation under Sub-section 210(2)(3), any party may
report to the conciliator that the negotiation have failed and request
the conciliator in writing to conciliate the dispute and conciliator
shall, on receipt of such request, proceed to conciliate in the
dispute. Under Sub-section 210(9) the conciliator has ten days time
for conciliation. If he fails to settle the dispute within ten days, the
workmen may go for strike or the employer may declare lock-out
by serving notice of twenty-one days.

●​ Arbitration
If conciliation fails the conciliator shall try to persuade the parties
to agree to refer to the dispute to an Arbitrator. In case the parties
agree, they shall make a joint request in writing for reference of the
dispute to an Arbitrator agreed upon by them. The arbitrator shall
give his award within thirty days from the date on which the
dispute is referred to him or within such period as may be agreed
upon by the parties. The award of the arbitrator shall be final and
no appeal shall lie against it [Sub-section 210(16)].

●​ Application to the Labour Court

If no settlement is reached by way of conciliation and the parties agree
not to refer the dispute to an arbitrator, the workmen may go on strike or
the employer may declare lock-out. However, the parties at dispute may,
either before or after the commencement of a strike or lock out, make
 174

joint application to the Labour Court for adjudication of the matter.

Again, if a strike or lock-out lasts for more than 30 days the government
may prohibit such strike or lock-out and in that case the government
must refer the dispute to the Labour Court [Sub-section 211(2)].

●​ Usual Jurisdiction of the Labour Court

Apart from the provisions mentioned above, any CBA, Employer or
Workman may apply to the Labour Court for the enforcement of any
right guaranteed or secured to him or under any law, award or settlement
[Section 213].

●​ Formation and Constitution of Labour Court

Under section 214, the Government may establish one or more Labour
Courts consisting of a Chairman and two members. One of the members
is to represent the workmen and the other to represent the employers. A
person shall not be qualified for appointment as Chairman unless he has
been or is, or is qualified to be, a Judge or an Additional Judge of the
High Court Division or is a District Judge or an Additional District
Judge. The members shall be appointed after consultation with the
employers and workmen.

The Labour Court has the power to give award or decision and also to
impose sentence as per section 214. All decisions and sentences of the
Labour Court other than awards are final.

●​ Labour Appellate Tribunal

Any person aggrieved by an award given by the Labour Court, may
prefer an appeal to the Labour Appellate Tribunal within 60 days of the
delivery thereof. [Section 217]
 175

The Appellate Tribunal shall consist of one member who shall be a

person who is or has been a Judge or an Additional Judge of the High
Court Division. [Section 218]

●​ Labour Appellate Tribunal: Court or Tribunal?

In industrial disputes, the Labour Court, while one step behind the
Appellate Body, operates as a court as per Sections 215 and 216,
following the CrPC for punishing offenses and the CPC for
adjudicating disputes. Conversely, the Appellate Body, designated
as a tribunal but no rationale has been given in the preamble or
anywhere in the Code. Despite this, it is clear that the Appellate
Tribunal functions more akin to a court, given its powers and status
comparable to the High Court Division. However, judicial
decisions emphasize that both the Labour Court and the Labour
Appellate Tribunal are not courts proper, but tribunals. For
instance, in the case of Pubali Bank v. the Chairman, the Appellate
Division ruled that the Labour Court acts as a Civil Court for
limited purposes, operating under legal fiction or statutory
hypothesis. Additionally, while the Labour Court may decide both
industrial and non-industrial disputes, it is considered a statutory
tribunal rather than a Civil Court proper. Similarly, when handling
individual complaints under the Employment of Labour (Standing
Order) Act, the Labour Court does not function as a Civil Court,
but rather as a tribunal with limited powers. Ultimately, in
adjudicating industrial disputes, the Labour Court assumes the role
of a Civil Court for specific purposes, without exercising the full
extent of powers available to Civil Courts under the CPC.

●​ Nari o Shishu Nirjatan Daman Tribunal

 176

The Nari o Shishu Nirjatan Daman Tribunal (Women and Children

Repression Prevention Tribunal) is established under the Nari o Shishu
Nirjatan Daman Ain 2000, which aims to prevent and address violence
against women and children in Bangladesh.

●​ Composition
Section 26 of the Nari o Shishu Nirjatan Daman Ain 2000 mandates the
establishment of a Tribunal in each District, known as the Nari o Shishu
Nirjatan Daman Tribunal, to try offences under this Act. The
Government can establish additional Tribunals in a district if necessary.
Each Tribunal will have one Judge, appointed by the Government from
among the District or Session Judges, in addition to their existing duties.
The terms District Judge and Session Judge also include Additional
District Judges and Additional Session Judges.

●​ Jurisdiction
Section 27 stipulates that a Tribunal cannot take cognizance of an
offence without a written report from a police officer of at least the rank
of SI or a person empowered by the Government. However, the Tribunal
may take cognizance of an offence without a report if it deems it
necessary for justice, providing reasons for its decision. When an
offence occurs within a Tribunal's jurisdiction or when the offender is
found within its jurisdiction, the Tribunal will take cognizance and
proceed with the trial. Sub-section 3 allows related offences to be tried
together in the same Tribunal for the sake of justice.

●​ Appeal
According to Section 28, the party aggrieved by the order, judgment or
punishment imposed by the Tribunal, can appeal to the High Court
 177

Division within the period of sixty days against such order, judgment or
punishment.

●​ Offences Punishable Under Nari o Shishu Nirjatan Daman Ain

2000
○​ Trafficking of women and children;
○​ Abduction and forced confinement of women and children;
○​ Rape and Rape resulting in death; and
○​ Sexual harassment leading to death.

●​ Manab Pachar Daman Tribunal

The Manab Pachar Daman Tribunal (Human Trafficking Prevention
Tribunal) is established under the Manab Pachar Protirodh o Daman Ain
2012, which aims to prevent and suppress human trafficking, protect and
ensure the rights of victims of human trafficking, and ensure safe
migration.

●​ Composition
To expedite trials of offences under this Act, the Government can
establish a Human Trafficking Prevention Tribunal in any district,
staffed by a judge of District Judge or Additional District Judge rank.
Until such Tribunals are established, the Government may designate
existing Nari o Shishu Nirjatan Daman Tribunals to serve this purpose in
each district as per Section 21(1) and (2).

●​ Jurisdiction
According to Section 21(4) and (5), the Tribunal with jurisdiction to try
offences under this Act is the one located where the offence or part of it
occurred, where the trafficking victim was rescued, or where the victim
resides. If an offence is committed outside Bangladesh by a Bangladeshi
 178

citizen, company, or resident, the Tribunal in the district where the

person or the company's registered office is located will have
jurisdiction.

●​ Powers of the Tribunal

The Tribunal under Section 22 of the Act has extensive powers akin to a
Sessions Court. It can compel the production of reports or documents,
issue protective orders, and conduct trials expediently, even
electronically if necessary. The Tribunal can also safeguard victims,
especially women and children, by placing them in shelters or with
appropriate caretakers during proceedings. Before charges are framed, a
magistrate may exercise these powers. Additionally, the Tribunal can
grant bail, considering factors such as the severity of the offence and the
safety of victims and witnesses.

●​ Offences Punishable Under Manab Pachar Protirodh o Daman

Ain
○​ Organized human trafficking;
○​ Inducing, conspiring, and attempting to commit the crime of
human trafficking;
○​ Forcing or compelling someone into forced or slave-like
labor or services;
○​ Kidnapping, stealing, and detaining for the purpose of human
trafficking;
○​ Importing or relocating for prostitution or any other form of
sexual exploitation or abuse;
○​ Running a brothel or permitting any place to be used for such
purposes;
○​ Soliciting for the purpose of prostitution; and
○​ Threatening the victim or witnesses of the case.
 179

●​ Cyber Tribunal
The Cyber Tribunal is established under the ICT Act 2006, which aims
to provide legal recognition and security of Information and
Communication Technology and rules of relevant subjects.

●​ Composition
According to Section 68(1) and (2) of the ICT Act 2006, the
Government will establish one or more Cyber Tribunals, announced
through the Official Gazette, to ensure speedy and effective trials of
offences under this Act. These Tribunals, formed in consultation with
the Supreme Court, will be presided over by a Session Judge or
Additional Session Judge appointed by the Government and will be
designated as “Judge, Cyber Tribunal”.

●​ Jurisdiction
The Cyber Tribunal will not accept the trial of any offence without a
written report from a police officer of at least the rank of SI or without
prior approval from the Controller or an authorized officer as per Section
69(1).

●​ Confiscation
Section 77 outlines that any computer, system, storage media, or related
accessories involved in the violation of this Act or its regulations, or
used in committing an offence, can be confiscated by a court order from
the court handling the case.

●​ Cyber Appellate Tribunal

Section 82-84 of the ICT Act 2006 deals with the Cyber Appellate
Tribunal.
 180

The Government will establish one or more Cyber Appellate Tribunals,

announced in the Official Gazette, consisting of a Chairman and two
members. The Chairman must be, or qualify to be, a Judge of the
Supreme Court, one member must be a serving or retired District Judge,
and the other must have expertise in information and communication
technology. Appointments last between three and five years. The Cyber
Appellate Tribunal can hear appeals and modify, revoke, or affirm
decisions from Cyber Tribunals and Session Courts, following
procedures similar to the High Court Division of the Supreme Court. If
no Cyber Appellate Tribunal is established, appeals can be lodged in the
High Court Division.

●​Special Courts
Parliament, through its legislative power, can create special courts with
specific jurisdictions. Regardless of their jurisdiction as special courts,
one common element is that they are all subordinate to the supervisory
power of the High Court Division of the Supreme Court. Brief features
of some important special courts are given below.

●​ Small Causes Courts

The system of Small Cause Court is designed to ensure speedy justice
and the early disposal of disputes involving small amounts.

According to Section 25 of the Civil Courts Act 1887, the jurisdiction to

try cases mentioned in the Small Cause Courts Act 1887 may be
conferred upon the Joint District Judge, Senior Assistant Judge, or
Assistant Judge.
 181

Section 15 of the Small Cause Courts Act stipulates that all suits of a
civil nature with a value not exceeding 25 thousand taka shall be
cognizable by a Court of Small Causes, which is the upper limit set by
the Act. However, Section 25 of the Civil Courts Act 1887 specifies the
pecuniary jurisdiction for the trial of suits cognizable by Small Cause
Courts as follows:

1.​ Up to a value not exceeding 20 thousand taka in the case of a Joint

District Judge;
2.​ Up to a value not exceeding 10 thousand taka in the case of a
Senior Assistant Judge whose jurisdiction has been extended under
Sub-section (2) of section 19;
3.​ Up to a value not exceeding 6 thousand taka in the case of any
other Assistant Judge.

A suit cognizable by a Court of Small Causes shall not be tried by any

other court having jurisdiction, as per Section 15 of the CPC, which
states that every suit shall be instituted in the court of the lowest grade
competent to try it.

Appeals from Small Cause Courts lie to the District Judge's Court, as per
Section 104 of the CPC, with grounds outlined in that Section clause (ff)
or (h) (Section 24/ SCC Act 1887).

The High Court Division has the power to revise decisions of Small
Causes Courts (Section 25/SCCA).

A Court of Small Causes is subject to the administrative control of the

District Judge and the superintendence of the High Court Division
(Section 28/SCCA).
 182

The District Judge has the power to withdraw a case from the Small
Causes Court (Section 28A/SCCA).

Small Causes Courts do not have jurisdiction over

●​ Execution of decrees;
●​ Execution of immovable properties;
●​ Sections 9 of the CPC;
●​ Sections 91 and 92;
●​ Attachment of immovable properties
●​ Injunctions; or
●​ The appointment of a receiver of immovable property.

●​ Procedure
The procedure of the Small Cause Courts Act follows a summary
procedure; the judge is not required to follow the procedure of framing
issues or the lengthy procedure of recording evidence given by the
parties, as outlined in Order 50 of the CPC.

●​ Family Court
Under the Family Courts Ordinance, 1985, the Assistant Judge acts as a
Family Court to adjudicate family matters specified in the Ordinance.
Section 5 of the Ordinance outlines the jurisdiction of the Family Court,
which includes:

●​ Dissolution of marriage;
●​ Restitution of conjugal rights;
●​ Dower;
●​ Maintenance; and
 183

●​ Guardianship and custody of children.

●​ Pre-trial Hearing/ Reconciliation Proceeding

According to Section 10 of the Family Courts Ordinance, 1985, upon
filing the plaint and the written statement, the court must schedule a
pre-trial hearing within 30 days. During this hearing, the court examines
the plaint and written statement, identifies the issues, and attempts to
facilitate a compromise or reconciliation between the parties.

●​ Post-trial Reconciliation
1.​ Sub-section 13(1) states that after the conclusion of evidence from
all parties, the Family Court must make another attempt to reach a
compromise or reconciliation.

2.​ Sub-section 13(2) specifies that if reconciliation is not possible, the

Court must pronounce judgment.

3.​ Section 14 stipulates that if a dispute is settled through

compromise or reconciliation, the Court must issue a decree or
render a decision based on the agreed terms.

●​ Village Courts
The Village Courts, established under the Village Courts Act, 2006
(Gram Adalat Ain, 2006), aim to adjudicate petty civil and criminal
matters in rural areas. The Act's schedule outlines a list of criminal cases
and civil matters, delineating the court's jurisdiction. Section 4 specifies
that anyone wishing to file a case regarding matters in the Schedule,
whether civil or criminal, must do so in the Village Court. According to
Section 5, each village court comprises a Chairman and two Members
nominated by each party to the dispute, totaling five Members, including
 184

the Chairman. One of the two members nominated by each party must
be a member of the local Union Parishad. When the court's decision is
unanimous or by a majority of four to one, or by a majority of three to
one when there are four members present, the decision is final, and there
is no option for appeal. However, if the decision is by a majority of three
to two, any party to the dispute may prefer a revision application to the
First Class Magistrate in criminal cases and to the Assistant Judge if the
dispute arises from a civil matter [Section 8]. No lawyer is permitted to
appear before the court on behalf of any party to the dispute. The court's
pecuniary jurisdiction is limited to matters involving 5 thousand taka,
and the compensation awarded by the Village Court must not exceed 5
thousand taka.

●​ Money Loan Court

The Government may establish one or more Artha Rin Adalat (Money
Loan Court) under the Money Loan Court Act 2003 in each district to
adjudicate cases by financial institutions, with the option to create a
single court for multiple districts if deemed convenient. If no such court
exists, loan recovery cases will be filed in the local Joint District Judge
Court, which will function as an Artha Rin Adalat under this Act. The
Government can convert existing Joint District Judge Courts into Artha
Rin Adalats, transferring other cases to different courts. Judges for these
courts are appointed from among Joint District Judges, who will not
handle other civil or criminal cases. Temporary judge replacements can
be appointed if needed. The Government can dissolve these courts and
manage pending cases accordingly. Artha Rin Adalats are located in
district headquarters, and judges are titled “Judge, Artha Rin Adalat”.

●​ Exclusive Jurisdiction
 185

All loan recovery cases by financial institutions must be filed and

resolved in the Artha Rin Adalat as per Section 4, regardless of other
laws, with exceptions in Sub-sections (5) and (6). Mortgage suits for the
sale or foreclosure of secured immovable property must also be filed in
this court, and relevant provisions of The CPC will apply. Foreclosure
cases will result in a preliminary decree, while other loan recovery cases
will have a final decree. Decrees in loan recovery cases will be
preliminary foreclosure decrees, becoming final upon auction of the
property, voiding the debtor's right to redeem. Loan recovery cases
deemed “public demands” must be filed in this court, but claims up to
500,000 BDT by certain banks can be filed under The Public Demands
Recovery Act, 1913. Provisions of this Act are supplementary to special
laws governing financial institutions. Loans to the government are
exempt from these provisions. Cases under this Act will be registered as
“Artha Rin Cases”, with local jurisdiction determined by the District
Judge, who can transfer cases for the sake of justice. The Artha Rin
Adalat will function as a civil court with equivalent powers, consistent
with this Act.

Criminal Proceedings: Various Stages

Judicial proceeding, be it criminal or civil, means the way or form in

which a legal action is brought or defended in a court of law. It largely
encompasses the whole process of beginning to end of a litigation.

●​Nature of Criminal Proceeding

●​ Adversarial & Inquisitorial Process
●​ Historical Background
 186

The adversarial system traces its roots back to medieval England, where
it evolved as a method for resolving disputes through a competitive
process between opposing parties.

The inquisitorial system, on the other hand, has its origins in Roman law
and the medieval inquisition, where judges played an active role in
investigating and determining the truth in legal proceedings.

●​ Key Characteristics: Adversarial System

Adversarial: It is characterized by the adversarial nature of legal
proceedings, where two opposing parties – the prosecution and
defense – present their cases before an impartial judge or jury.

Party-Controlled: Parties are responsible for gathering evidence,

examining witnesses, and presenting arguments to support their
respective positions.

Presumption of Innocence: Defendants are presumed innocent

until proven guilty, and the burden of proof rests with the
prosecution to establish guilt beyond a reasonable doubt.

●​ Key Characteristics: Inquisitorial System

Inquisitorial: It is characterized by an investigative approach,
where judges take an active role in gathering evidence, questioning
witnesses, and determining the facts of the case.

Judge-Controlled: Judges have broader powers to direct the

course of the proceedings, including the authority to initiate
investigations, call witnesses, and evaluate evidence.
 187

Truth-Seeking: The primary objective is to uncover the truth and

ascertain the facts of the case, rather than engaging in adversarial
advocacy.

●​ Advantages & Disadvantages: Adversarial System

●​ Advantages
Adversarial Advocacy: Provides parties with the opportunity to
vigorously advocate for their positions and ensure a robust defense
or prosecution.

Protection of Rights: Safeguards individual rights, including the

right to a fair trial, confrontation of witnesses, and
cross-examination.

●​ Disadvantages
Costly and Time-Consuming: Legal proceedings can be lengthy
and expensive, particularly in complex cases with extensive
pre-trial preparations and courtroom battles.

Focus on Winning: Emphasis on winning the case rather than

uncovering the truth may lead to adversarial tactics and
gamesmanship.

●​ Inquisitorial System
●​ Advantages
Efficiency and Expediency: Inquisitorial proceedings are often
more streamlined and efficient, as judges play a proactive role in
managing the case and gathering evidence.
 188

Truth-Seeking: Focus on uncovering the truth and ascertaining the

facts may lead to more accurate and just outcomes.

●​ Disadvantages
Lack of Adversarial Advocacy: Limited opportunities for parties
to actively participate in the proceedings and advocate for their
interests may raise concerns about fairness and due process.

Potential for Judicial Bias: Concentration of power in the hands

of judges may increase the risk of judicial bias or unfair treatment
of parties.

●​ System followed in Bangladesh

Bangladesh primarily follows an adversarial trial system in its legal
proceedings.

The adversarial nature of Bangladesh's legal system is reflected in its

Code of Criminal Procedure (CrPC), which provides for the prosecution
and defense to present their cases before the court.

●​ Examination-in-Chief, Cross-examination and

Re-examination [S 137 of the Evidence Act, 1872]
●​ Examination-in-chief: The examination of a witness by the party
who calls him shall be called his examination-in-chief.

●​ Cross-examination: The examination of a witness by the adverse

party shall be called his cross-examination.
 189

●​ Re-examination: The examination of a witness, subsequent to the

cross-examination by the party who called him, shall be called his
re-examination.

●​ Judge’s power to put questions or order production [S

165 of the Evidence Act 1872]
In order to discover or to obtain proper proof of relevant facts, the Judge
may ask any question he pleases, in any form, at any time, of any
witness, or of the parties about any fact relevant or irrelevant; and may
order the production of any document or thing and neither the parties nor
their agents shall be entitled to make any objection to any such question
or order, nor, without the leave of the Court, to cross-examine any
witness upon any answer given in reply to any such question.

●​ Presumption of Innocence
The presumption of innocence is a legal principle that asserts that an
accused person is considered innocent until proven guilty beyond a
reasonable doubt by a court of law. In other words, the burden of
proving the defendant's guilt lies entirely with the prosecution.
Until the prosecution presents sufficient evidence to establish guilt, the
defendant is entitled to be treated as innocent and should not be subject
to adverse consequences or punishment.

●​ Key aspects of the presumption of innocence

1.​ Burden of Proof: In criminal proceedings, the burden of proving
the defendant's guilt rests solely with the prosecution. The
prosecution must present credible evidence and legal arguments to
convince the court or jury of the defendant's guilt beyond a
reasonable doubt.
 190

2.​ Standard of Proof: The standard of proof required in criminal

cases is “beyond a reasonable doubt”, which is the highest standard
of proof in legal proceedings. This means that the evidence
presented by the prosecution must be so convincing that there is no
reasonable doubt in the minds of the jurors or judge about the
defendant's guilt.

3.​ Legal Rights: The presumption of innocence is mentioned in

various legal instruments, including constitutions, statutes, and
international human rights conventions. It serves to protect the
rights of individuals accused of crimes and ensures that they
receive a fair trial and due process of law.

●​ Benefit of the Doubt

The benefit of the doubt is a related concept that arises when the
evidence presented in a criminal case is insufficient to establish guilt
beyond a reasonable doubt. In such cases, the principle dictates that any
reasonable doubts about the defendant's guilt should be resolved in favor
of the accused, resulting in an acquittal or verdict of not guilty.

●​ Key aspects of the benefit of the doubt

1.​ Legal Standard: When there is ambiguity or uncertainty in the
evidence presented by the prosecution, the judge or jury is
instructed to give the defendant the benefit of the doubt. This
means that the defendant should not be convicted based on mere
suspicion or conjecture but must be proven guilty beyond a
reasonable doubt.

2.​ Presumption of Innocence: The benefit of the doubt is closely

linked to the presumption of innocence, as it reinforces the idea
 191

that the accused should not be punished unless guilt is proven with
certainty. It reflects the principle that it is better to err on the side
of caution and acquit an innocent person than to wrongfully
convict them.

3.​ Protection of Rights: Upholding the benefit of the doubt ensures

that the rights of the accused are protected and that justice is
served. It prevents miscarriages of justice and wrongful
convictions, upholds the integrity of the legal system, and
maintains public confidence in the rule of law.

●​ S 3 of the Evidence Act 1872

A fact is said to be proved when, after considering the matters before it,
the Court either believes it to exist, or considers its existence so probable
that a prudent man ought, under the circumstances of the particular case,
to act upon the supposition that it exists.

A fact is said to be disproved when, after considering the matters before

it, the Court either believes that it does not exist, or considers its
non-existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the supposition that it
does not exist.

●​ Key Actors in the Criminal Justice System

Judges: Preside over criminal trials and hearings, interpret and apply the
law, make decisions on legal matters, and ensure that proceedings are
conducted fairly and impartially.
 192

Public Prosecutors: Represent the government in criminal cases,

present evidence, examine witnesses, and argue for the conviction of the
accused.

Defense Lawyers: Represent individuals accused of crimes, advocate on

behalf of their clients, provide legal advice, challenge the prosecution's
case, and defend the accused against criminal charges.

Police Officers: Enforce the law, conduct investigations into criminal

offenses, gather evidence, apprehend suspects, and maintain public order
and safety.

Prison Officials (Jailors, Correctional Officers): Responsible for the

custody, care, and management of individuals detained or incarcerated in
prisons and correctional facilities. They ensure the safety and security of
inmates, oversee daily operations within prison facilities, and implement
rehabilitation programs.

Forensic Experts (Forensic Scientists, Pathologists, Crime Scene

Investigators): Provide specialized expertise in analyzing physical
evidence, conducting scientific tests, and reconstructing crime scenes.
Their findings play a crucial role in criminal investigations and court
proceedings.

●​ Key Institutions Involved In Criminal Justice System

Judiciary: The judiciary of Bangladesh consists of various courts and
tribunals. The judiciary is responsible for interpreting and applying the
law, adjudicating criminal cases, and ensuring that justice is
administered fairly and impartially.
 193

Law Enforcement Agencies: Law enforcement agencies in Bangladesh,

such as the Bangladesh Police, Rapid Action Battalion (RAB), Detective
Branch (DB), and Criminal Investigation Department (CID), are
responsible for enforcing the law, maintaining public order, and
investigating criminal offenses. They play a crucial role in conducting
criminal investigations, apprehending suspects, and gathering evidence
for prosecution.

Public Prosecution: The Public Prosecution, headed by the Attorney

General of Bangladesh, represents the state in criminal cases and
prosecutes individuals accused of committing offenses. It comprises
public prosecutors and legal officers who present evidence, examine
witnesses, and argue for the conviction of the accused in court.

Ministry of Home Affairs: The Ministry of Home Affairs is responsible

for overseeing law enforcement agencies, ensuring public safety and
security, and formulating policies and regulations related to crime
prevention and criminal justice.

Ministry of Law, Justice and Parliamentary Affairs: The Ministry of

Law, Justice and Parliamentary Affairs is responsible for formulating
and implementing legal policies, drafting legislation, and providing legal
advice to government agencies. It plays a vital role in the administration
of justice and the functioning of the legal system in Bangladesh.

Academic Institutions: Academic institutions, including law schools,

universities, and research centers, contribute to the study and analysis of
criminal justice issues, legal reforms, and policy development. Legal
scholars, researchers, and students engage in research, teaching, and
 194

advocacy to promote justice, human rights, and the rule of law in

Bangladesh.

Correctional Institutions: Correctional institutions, including prisons

and correctional facilities, are responsible for the custody, care, and
rehabilitation of individuals who are detained or incarcerated. They
provide housing, food, medical care, and educational and vocational
programs to inmates, with the goal of promoting rehabilitation and
reducing recidivism.

Media: The media, including print, broadcast, and online outlets, play a
crucial role in shaping public perception of the criminal justice system,
raising awareness about issues of crime and justice, and holding
authorities accountable for their actions. Journalists report on criminal
cases, investigative findings, and legal developments, contributing to
public discourse and oversight of the justice system.

●​Stages in a Criminal Proceeding

The stages may be divided into four periods:
1.​ Pre-Proceeding Stage;
2.​ Proceeding Stage (Court);
3.​ Trial Stage (Court); and
4.​ Post-trial Stage (Police or Jail authority or Probation authority etc).

1.​Pre-proceeding Stage
●​ Start of Criminal Proceedings
A criminal proceeding starts either by way of an FIR/ Ejhar or by way of
a complaint.

●​ First Information Report (FIR)/ Ejhar

 195

The term "first information" isn't explicitly mentioned in the Code

of Criminal Procedure (CrPC), but Section 154 of the CrPC
pertains to the First Information Report (FIR). This FIR refers to
the initial report received by the Officer in Charge (OC) of a Police
Station regarding the commission of a cognizable offense. This
report must be received as early as possible by any individual. The
information can be provided orally or in writing. If given orally, it
must be documented in writing by the police officer and signed by
the informant. In this context, "information" under Section 154
encompasses a complaint, accusation, or any details of a crime
intended to prompt a police investigation, distinct from
information gathered by the police during an ongoing
investigation.

●​ Complaint in Non-cognizable and Cognizable Offense

An allegation, whether communicated orally or in writing, is
presented to a Judicial Magistrate as either a cognizable or
non-cognizable offense, with the intention of initiating legal action
under the Code of Criminal Procedure (CrPC). This is done by
asserting that an individual, whether identified or unidentified, has
committed an offense. The complaint petition is then recorded as a
Complaint Registrar (CR) case number. According to the
provisions outlined in Section 200, the Judicial Magistrate
proceeds to take cognizance under Section 190. Before filing the
petition, the complainant must either take an oath or submit an
affidavit. Subsequently, the Magistrate can undertake various
actions, such as sending the case for investigation or judicial
inquiry, issuing summonses or warrants, directing the concerned
police station to register it as a First Information Report (FIR), or
 196

transferring it to the appropriate court if not authorized to

adjudicate the case.

●​ Inquiry [S 4(k)] & Investigation [S 4(l)]

(l) “investigation" includes all the proceedings under this
Code for the Collection of evidence conducted by a
police-officer or by any person (other than a Magistrate) who
is authorized by Magistrate on this behalf.

(k) “inquiry” includes every inquiry other than a trial

conducted under this Code by a Magistrate or Court.

●​ Reporting to the Magistrate (P.S. case, G.R. case and C.R.

case)
As soon as an FIR is filed at the police station, a number is assigned to
each FIR, such as FIR No. 4, 5, etc., or Police Station (PS) Case No. 4,
5, etc. Almost every criminal case, except for complaint cases, starts
with a Police Station Case number. Once an FIR is recorded at the police
station, the original copy must be sent without delay (within 24 hours) to
the Magistrate through the court officer, as required by Section 157 of
the CrPC. When the Magistrate's court receives such a report, a number
is assigned to the case, called the G.R. Case number (General Registered
Case number). This process is purely administrative and automatic, as
the Magistrate does not review or examine the papers.

●​ G.D. Entry
This is completely different from an FIR. Every occurrence that
may come to the knowledge of police officers shall be recorded in
a book known as the General Diary. An FIR is made using B.P.
Form No. 27, following the instructions printed on it. In contrast,
 197

the General Diary is kept in B.P. Form No. 65, as referred to in

Section 44 of the Police Act, 1861, and detailed in Regulation No.
377 of the Police Regulations Bengal, 1943.

●​ Investigation & Maintaining Case Diary

If the offense is cognizable, the police may investigate without an order
from a Magistrate [Section 156]. On the other hand, if the offense is
non-cognizable, a police officer can investigate only after receiving an
order from a Magistrate [Section 155]. An investigation involves the
steps taken by an investigating officer (IO) or a person authorized by a
Magistrate for this purpose.

●​ Steps Followed in Investigation

●​ An investigation consists of the following steps:
1.​ Proceeding to the spot;
2.​ Ascertainment of facts and circumstances of the case;
3.​ Discovery and arrest of the suspected offender or offenders;
4.​ Collection of evidence relating to the commission of the
offense alleged, which may consist of: (a) Examination of
various persons, including the accused, and the reduction of
their statements into writing if the officer thinks fit; (b) The
search of places or seizure of things considered necessary for
the investigation and to be produced at the trial;
5.​ Formation of an opinion as to whether, on the materials
collected, there is a case to place the accused before a court
for trial, and if so, taking the necessary steps for the same by
filing a charge-sheet under section 173 [Mosharraf Hossain
v. State, 30 DLR (SC) 112]; and
6.​ Making a case diary (C.D.) containing the record of facts
ascertained by the officer during the investigation and the
 198

actions he has taken, showing the time and date against every
action.

The Case Diary is of crucial importance to both the court and the
prosecuting authority. It provides a detailed account of the facts,
circumstances, and activities of the officer related to a crime, as
well as his findings. If an arrest is made during the investigation
and the investigation cannot be completed within 24 hours of the
arrest, the police officer must produce the arrested person before a
Magistrate and may seek police remand for further interrogation.

●​ Final Report/ Charge Sheet

Police enjoy an unfettered right in an investigation to submit either a
charge sheet or a final report in a particular case, without any
interference from the court. Upon conclusion of the investigation, the
Investigating Officer is required to submit either a Final Report or a
Charge Sheet, as per Section 173 of the CrPC. If a final report is given, it
means that no case of the offense has been made out from the
investigation, and as such, the accused should be released from custody
or discharged from the bail bond, as applicable. On the other hand, if a
charge sheet is given, it means that there is a recommendation for
prosecuting the offender. The charge sheet or final report, as the case
may be, shall be forwarded to the Magistrate empowered to take
cognizance of the offense, as per Section 173.

●​ Final Report and Naraji Petition

If the police submit a final report recommending that there is no case
against the accused, the Magistrate, after carefully scrutinizing the
report, may accept or reject it. If the Magistrate rejects the final report,
they may order further investigation. They may also direct an inquiry
 199

and, after examining the complainant, if satisfied, take cognizance of the

case [Munshi Lal v. Khan Abdul Jalil, 5 BLD 24]. If the Magistrate
accepts the final report, the aggrieved informant can file a naraji petition
in the court. A naraji petition is considered a complaint, and the
Magistrate, if upon examination of the complainant or other witnesses, is
satisfied, may issue a process upon the accused, or they may direct an
inquiry into it by another Magistrate [Syed Azharul Kabir v. Syed Ehsan
Kabir, 4 MLR (AD) 343].

2.​Proceeding Stage/ Commencement of a Proceeding

This stage consists of the court taking cognizance of an offense, the
commencement of a criminal proceeding, and transfer, etc. However,
taking cognizance does not always mean the commencement of a
criminal proceeding. A criminal proceeding commences either when the
court takes cognizance of the offense or when it issues process. This
stage is broken into the following steps:

●​ Taking Cognizance
Taking cognizance indicates the point when a Magistrate or a Judge first
takes judicial notice of an offense. It is different from the initiation of
proceedings by a Magistrate; rather, it is a condition precedent to the
initiation of proceedings. There are conflicting decisions on this point.
Under Section 190, any Chief Metropolitan Magistrate (CMM),
Metropolitan Magistrate, Chief Judicial Magistrate (CJM), Magistrate of
the First Class, or any other Magistrate specially empowered in this
behalf may take cognizance of an offense based on any of the following
three sources:

1.​ upon a police report in the form of a charge sheet;

2.​ upon a complaint; or
 200

3.​ upon own knowledge or private information.

●​ How Cognizance is Taken

Normally, cognizance is taken in the presence of the accused person. If
the accused is in custody, they are brought before the court while taking
cognizance. On the other hand, if the accused has not been arrested, the
Magistrate must issue a process, i.e., either a summons or a warrant, to
compel the attendance of the accused. When the accused is brought
before the Magistrate, the Magistrate will examine the record of the case
to determine if there is any basis for initiating judicial proceedings. To
avoid confusion, for a complaint case, cognizance is taken in the absence
of the accused as specified in Section 200. This matter is explained
further in Section 201.

●​ Start of a Criminal Proceeding

If cognizance is taken based on a charge sheet, a criminal proceeding
starts immediately in the eyes of the law. Conversely, when cognizance
is taken based on a complaint or private information, it initiates certain
preliminary steps before a proceeding commences. Firstly, after taking
cognizance, the Magistrate may order an investigation to determine
whether to proceed further. Secondly, upon close scrutiny of Sections
200-204 regarding complaints, it becomes evident that although
cognizance is taken under Section 200, the actual proceeding does not
commence until the issuance of process under Section 204.

When a police officer receives information about the commission of a

non-cognizable offense, they make an entry in the General Diary and
refer the informant to the Magistrate. Subsequently, the Magistrate
examines the informant under oath (Section 200). The Magistrate may
then choose to proceed with an inquiry or order an investigation without
 201

issuing a process immediately. The proceeding begins once the

investigation or inquiry is concluded, and the Magistrate issues the
process under Section 204. Issuance of process involves the Magistrate
issuing either summons or warrants to bring the accused before the court
at a specified time.

●​ Transfer for Trial to an Appropriate Court

Once cognizance has been taken or proceedings commence, either on the
application of the accused under Section 191, by a Magistrate under
Section 192, under Section 205C when the case is exclusively triable by
the Court of Session, or under Section 205CC when the case is triable by
the CMM or CJM, the case is to be transferred accordingly. After the
transfer is complete to an appropriate court, another number is usually
assigned to the case, such as Special Case No. 5 of 2003 or Sessions
Case No. 6 of 2003. Once this is done, the case becomes ready for trial.

3.​Trial Stage
The trial stage can be discussed under two headings: Trial in the
Magistrate Court and trial in the Sessions Court. This is because the
nature and procedure of trials in these two courts are different.

●​ Trial in the Magistrate Court

In Magistrate court, trials occur in two forms: Summary trials and
regular trials. Sections 260 and 261 outline cases to be tried summarily
by Magistrates. Unlike in regular trials, the court in summary trials has
to simplify and shorten trial procedures by dispensing with the recording
of evidence and limiting adjournments. Summary trials are subject to a
two-year maximum sentence imposed by Magistrates. In summary trials,
Magistrates must adhere to all steps of a regular trial. However, for
offenses where no appeal is allowed, recording witness evidence or
 202

framing a formal charge is unnecessary for the Magistrate [Section 263].

Additionally, in summary trials for offenses where an appeal is possible,
Magistrates must record the substance of the evidence (not the full
evidence) [Section 264].

●​ Steps of a Regular Trial in Magistrate Court

1.​ Pre-trial Hearing/ Discharge before Framing of Charge
On the scheduled trial date, if the accused is in custody, they
will be brought from prison. If the accused is out on bail,
they must appear in court or surrender to their bail and then
be placed in a cell to await trial. If the accused fails to appear
despite being on bail, the trial court may issue a ‘bench
warrant’ for their arrest. Regardless of the circumstances,
when the accused appears or is brought before the magistrate,
the magistrate will first review the case record and hear the
parties. If the magistrate deems the charge to be groundless,
they may discharge the accused [Section 241A]. At this
point, the defense lawyer may argue ‘no case to answer’,
meaning that if the prosecution fails to establish a prima facie
case, the defense may not need to respond, and the judge or
magistrate may discharge the accused before formal charges
are framed.

2.​ Framing of Charges

If, on the other hand, the Magistrate is of the opinion that
there is a prima facie case against the accused and that he is
competent to try the case, he shall then frame a formal
charge. This charge must contain sufficient particulars
regarding the time, place, person, and circumstances so that
the accused is notified of the matter with which he is charged
 203

[Section 242]. It is essential to note that the formal trial

commences with the framing of the charge.

3.​ Plea and Conviction

After framing the charge, the accused will be asked if they
admit to committing the offense. If the accused pleads guilty,
acknowledging their guilt to the charge, the Magistrate may
convict them accordingly [Section 243].

4.​ Hearing/ Taking Evidence

If the Magistrate does not convict the accused based on their
plea or if the accused does not make an admission, the
Magistrate shall proceed to hear the case based on the
evidence. The accused and all witnesses will be examined
and cross-examined according to the laws of evidence and
the Code of Criminal Procedure [Section 244].

5.​ Examination of the Accused

After the witnesses for the prosecution have been examined
and before the accused is called for his defense, the court
may, without previously warning the accused, ask him any
questions for the purpose of enabling him to explain any
circumstances appearing in the evidence against him. The
accused may answer such questions or refuse to answer, and
the court may draw such inferences from such refusal or
answers as it thinks just.

6.​ Acquittal
 204

If after hearing evidence and examining the accused the

Magistrate finds the accused not guilty, he shall record an
order of acquittal.

7.​ Sentence and Transfer for Sentence

On the other hand, if the Magistrate finds the accused guilty,
he shall pass the sentence. However, if he finds that the
accused is guilty and deserves a punishment different in kind
from or more severe than what he can impose, he will
forward his proceedings to the CJM or the Magistrate of the
First Class to whom he is subordinate [Section 349].

●​ Trial Stage in Sessions Court

Trials in the Sessions Court are more formal and lengthy compared to
those in the Magistrate's Court. Unlike in the Magistrate's Court, there
are formal openings, arguments, and closings for every case.

1.​ Opening of the Prosecution Case

When the accused appears or is brought before the court, the
Public Prosecutor opens the case by describing the charge brought
against the accused and stating by what evidence he will prove the
guilt of the accused [Section 265B].

2.​ Pre-trial Hearing/ Discharge before framing of Charge

After the prosecution presents its case, the Session Judge will
provide both sides with an opportunity to argue in favor of either
framing charges or discharging the accused. At this stage, there
will be no examination of witnesses. Following this hearing and a
review of the case record, if the Judge determines that there is
insufficient evidence or no prima facie case to proceed against the
 205

accused, they shall discharge the accused and document the

reasons for doing so [Section 265C]. This marks the first instance
where the defense lawyer can raise the argument of ‘no case to
answer’. This means that if the prosecution fails to establish a
prima facie case supporting their allegations against the accused,
there may be no case for the defense to answer, and in such
instances, the judge will discharge the accused before framing
charges.

3.​ Framing of Charge

If, on the other hand, the Judge considers that there is a prima facie
case against the accused, it shall frame a charge [Section 265D].
Formal trial starts with the framing of charge.

4.​ Plea and Conviction

After the charge is framed, it shall be read and explained over to
the accused and the accused shall be asked whether he pleads
guilty of the offense charged or claims to be tried. If the accused
pleads guilty, the Court shall record the plea and may convict him
accordingly [Section 265E].

5.​ Prosecution Evidence: Examination-in-Chief and Cross

Examination
If, on the other hand, the accused refuses to plead, or does not
plead or claims to be tired, or the judge does not accept his plea,
the court shall fix a date for the examination of witnesses. The
Public Prosecutor will first examine all prosecution witnesses.
After prosecution witnesses are examined, cross-examination by
the accused and re-examination, if any, will follow immediately
[Sections 265F and 265G].
 206

6.​ Acquittal on the basis of Prosecution Evidence

If, after considering the prosecution evidence and the defense on
the point, the Court considers that there is no evidence that the
accused committed the offense, it shall record an order of acquittal
[Section 265H].

7.​ Defense Evidence

Examination in Chief and Cross: If the accused is not acquitted,
he shall be called upon to enter on his defense and adduce any
evidence in his favor. The defense counsel will examine all defense
witnesses. After defense witnesses are examined,
cross-examination by the Public Prosecutor and re-examination, if
any, will follow immediately [Section 265I].

8.​ Summing Up/ Closing of the Prosecution and Defence Case

After hearing both the defense and prosecution evidence, the
prosecutor will first sum up his prosecution case highlighting
particularly the strength of the prosecution case and weaknesses of
the defense case. This is because the prosecution bears the burden
of proving beyond all reasonable doubt that the offense was
committed by the accused. In other words, the prosecution closing
speech should contain two important things:

●​ A summary of the evidence which shows that the defendant

is guilty; and
●​ An explanation of the burden and standard of proof.

Once the prosecution summing up is complete, the defense counsel

will have his reply, he will sum up the strength of the defense
 207

evidence and weakness of the prosecution evidence. His objective

would be to convince the court that the prosecution has failed to
prove the guilt of the accused beyond every reasonable doubt
[Section 265J]. In particular the defense closing speech should
contain the following things:

●​ A summary of the defense case;

●​ A summary of the weaknesses in the prosecution case;
●​ Any answers to the questions in cross-examination which
prosecution witnesses gave which suggest that the accused is
not guilty;
●​ An explanation of any evidence which damages the defense
case, e.g. that the prosecution witness is mistaken etc;
●​ An explanation of the burden and standard of proof.

9.​ Judgment of Acquittal or Conviction

After bearing arguments and summing up the judge will normally
not deliver the judgment at once, it will rather fix a date for
judgment. On the day fixed for judgment the judge would declare
the judgment in open court and in front of the accused, if not tried
in absentia [Section 366]. A sentence may be of different types:
imprisonment, fine, probation, death sentence etc.

4.​Post-Trial Stage
A criminal judgment ends either with acquittal or conviction. If it is an
acquittal and the accused is in jail, a copy of the judgment will be passed
to the jail authority that will release the acquitted offender as per the
judgment. On the other hand, if it is a conviction of imprisonment, the
accused will be taken from the court to jail and will be serving the
 208

sentence as per the judgment unless his sentence is suspended or

remitted by the Government.

When a sentence is fully executed, the officer executing it shall return

the warrant to the court from which it was issued, with an endorsement
under his hand certifying the manner in which the sentence has been
executed [Section 400].

If it is a death sentence, the proceedings shall be submitted to the High

Court Division and the sentence shall not be executed unless confirmed
by the High Court Division [Section 374].

When a person under the age of sixteen is sentenced by a criminal court,

the court may direct that such person, instead of being imprisoned in a
criminal jail be confined in any reformatory establishment or in any
training center or be served in a probation etc. [Section 399].

●​ How is Sentence Imposed? Any Guidelines for

Magistrates?
Every Magistrate has specific sentencing power, which falls between an
upper and lower limit. For example, a Magistrate of the third class has
the power to impose a sentence of up to two years; a Second Class
Magistrate can impose a sentence of up to three years, while a First
Class Magistrate can impose a sentence of up to five years. How do they
determine the sentence within these limits? What factors do they
consider? Neither the government nor the Supreme Court has provided
guidelines for Magistrates to follow. In many developed countries such
as the UK and USA, there are specific guidelines for Magistrates to
adhere to before imposing any sentence.
 209

Civil Proceedings: Various Stages

●​Nature of Civil Proceedings

●​ Adversarial Process
The whole process is a contest between two parties, the plaintiff and the
defendant, with the court taking a non-partisan role. The court plays no
significant role in the preparation of the case; the trial itself is not an
inquiry into events but rather a hearing to decide, within a complex set
of rules, whether the plaintiff is entitled to a right that the defendant
denies.

●​ Balance of Probabilities
If the plaintiff can establish a prima facie case (more than 50% truth)
before the court in favor of his claim and the other party does not present
any evidence in defense, the judge should rule in favor of the plaintiff.
Section 101 of the Evidence Act states that anyone who wants a court to
make a judgment about a legal right or liability based on certain facts
must provide proof that those facts are true. Additionally, Section 102 of
the Evidence Act states that the burden of proof in a suit or proceeding
lies on the person who would fail if no evidence were given on either
side.

●​ Scope
“Civil proceeding” covers all proceedings in which a party asserts civil
rights conferred by civil law. Civil justice involves the enforcement of
these civil rights, where the affected person claims a right that has been
denied by the defendant. All civil proceedings in Bangladesh are
regulated under the Code of Civil Procedure (CPC), unless otherwise
 210

excluded. Generally, three types of laws are involved in a civil

proceeding: the CPC, the Civil Rules and Orders (CRO), and the Civil
Suits Instruction Manual.

●​Stages of a Civil Proceeding

●​ Pre-Proceeding Stage
This is the initial stage of conciliation and mediation with a view to
resolving the dispute amicably between the parties. However, unlike the
system in the UK, there are no statutory provisions for mediation in civil
proceedings as a pre-proceeding step. The only available mandatory
mediation process is in family matters under the Muslim Family Law
Ordinance 1961 and the Family Court Ordinance 1985. As per section
10 of the Family Court Ordinance 1985, after filing the written
statement, the court is to fix a date within 30 days for a pre-trial hearing.
On that date, the court, after examining the plaint and written statement,
shall ascertain the issues and attempt to effect a compromise or
reconciliation between the parties, if possible. Apart from reconciliation
proceedings under the Family Court Ordinance, there has been a recent
change in the CPC adding the provision of ADR in all civil cases.
However, this is also not a pre-proceeding step.

●​ The Proceeding Stage

1.​ Institution of Suit/ Issue of Plaint
According to Section 26 of the CPC, every suit shall be instituted by the
presentation of a plaint. Once the plaint is ready, it is to be filed in the
court that has both territorial and pecuniary jurisdiction. According to
Section 15 of the CPC, a suit triable by a civil court must be instituted in
the court of the lowest grade competent to try it. Once a complaint is
taken to the court, the court officer, i.e., the Sheristadar, shall examine,
inter alia, if the relief claimed has been properly valued and the court
 211

fees paid. After such examination, he assigns a serial (consecutive)

number to the suit and enters it into a register called the Register of
Suits. The date of filing shall also be stamped on the plaint as soon as it
is filed. Once this is done, a civil suit is considered to have been started.
The machinery of a court is set in motion by the presentation of a plaint,
which is the first stage in a civil suit.

2.​ Issue of Process

Once the suit is filed and registered, the next step is to issue a process,
i.e, issue of summons by the court to the defendant to appear and answer
the claim (Section 27, Order V/CPC).

3.​ Service of Summons

A summons with a copy of the plaint, which is served on the defendant,
states the nature of the plaintiff's claim against the defendant and the
remedy he seeks to obtain, which may be damages, recovery of debt,
recovery of possession of property, an injunction, etc. Normally, service
of summons is done by the court officer, and the usual method is by
registered post (Order V/CPC).

4.​ Return of Summons/ Filing Written Statement etc.

On the summons, the court sets a date for the appearance of the
defendant. Once the defendant receives the summons and intends to
contest the claim, he must appear in court on the date specified in the
summons. On this day, the defendant either submits his written
statement or requests additional time to file it at a later date. The
defendant must file his written statement on or before the date of the first
hearing (Order VIII, Rule 1). Additionally, if the court finds that the
plaintiff has failed to pay the required court fee or postal charges for
 212

service of summons, it may dismiss the suit on that day (Rule 2, Order
IX).

5.​ Alternative Dispute Resolution (ADR)

Once pleading is complete, the disputes between the parties become
clear, and the court normally fixes a date for the first hearing. However,
in 2003, a new method of ADR was introduced in the CPC through
sections 89A and 89B, and chapter V of the Artha Rin Ain, 2003.
Sections 89A and 89B enact two methods of ADR: ‘mediation’ and
‘arbitration.’

The term ‘mediation’ is used in section 89A, which states that except in
a suit under the Artha Rin Ain, 1990, after the filing of the written
statement, if all the contesting parties are in attendance in the court
either in person or by their respective pleaders, the court may, by
adjourning the hearing, mediate to settle the dispute in the suit.
Alternatively, the court may refer the dispute to the engaged pleaders of
the parties or, where no pleader has been engaged, to a mediator from
the panel prepared by the District Judge under Sub-section 10 of Section
89A for settlement through mediation.

Regarding arbitration in Section 89B, it is stipulated that if the parties to

a suit, at any stage of the proceeding, apply to the court for withdrawal
of the suit on the grounds that they will refer the dispute to arbitration
for settlement, the court shall allow the application and permit the suit to
be withdrawn. The dispute shall then be settled in accordance with the
Salish Ain, 2001.

6.​ First Hearing and the Examination of Parties by the Court

 213

If the system of ADR is undertaken and is successful, the dispute will

end there. However, if ADR fails, the court shall proceed with the
hearing of the suit from the stage at which it stood before the decision to
mediate. If ADR is not undertaken or fails, the court will fix the date for
the first hearing. The first hearing of a suit is the day on which the court
examines the pleadings of the parties to understand their contentions. At
this first hearing, the court shall ascertain from each party or their
pleader whether they admit or deny the allegations of fact made in the
plaint or written statement. The court will record such admissions or
denials (R-1/Or-X). Issues are normally framed at this first hearing.

7.​ Framing of Issues

Issues are of two kinds: Issues of fact and issues of law. Issues arise
when a material proposition of fact or law is affirmed by one party and
denied by the other. Each material proposition affirmed by one party and
denied by the other forms the subject of a distinct issue. Thus, no issues
arise regarding admitted facts. At the first hearing of the suit, the court
shall, after reading the plaint and the written statements and after
examining the parties, if required, ascertain upon what material
propositions of fact or law the parties are at variance, and shall proceed
to frame and record the issues on which the right decision of the case
depends. The duty to frame issues primarily rests with the court.
However, the advocates appearing for both parties should also assist the
court in framing issues. Issues must be confined to the material
questions of law or fact and not to subordinate facts or evidence by
which the material questions of fact or law are proved or disproved. If
the court is of the opinion that the issues cannot be framed without the
examination of some person not before the court or without the
inspection of some document not produced in the court, it may adjourn
the framing of issues to a future date (Order XIV). In cases in which no
 214

issues need be framed, e.g., a small cause suit, the first hearing would be
the day on which the trial starts.

8.​ Section 30 Step and Settling of Date for Hearing (SD)

Though these two steps are known in civil suits, they are not followed as
strictly by the courts nowadays. The Section 30 step pertains to orders
regarding the delivery and answering of interrogatories, the admission of
documents and facts, and the discovery, inspection, production,
impounding, and return of documents or other material objects
producible as evidence. Apart from the Section 30 steps, once the issues
are framed, the court will fix a date for settling the date of the final or
peremptory hearing, i.e., the trial. On this ‘settling date’ (SD), the court
insists on the parties filing their lists of witnesses and applying for any
commission that may be required for the examination of witnesses. On
the SD, the presiding judge should fix the date of the peremptory or final
hearing. After a peremptory hearing date has been fixed, no further
adjournment is normally granted except for the most urgent and special
reasons.

●​ Trial Stage
1.​ Opening of the Case
The plaintiff will have the right to start their opening speech first, but
occasionally it might be the right of the defense to start the trial with a
speech. It depends on who bears the burden of proof on the matters at
issue in the trial (Order XVIII/Rule 1). In the opening speech, the
advocate will state the following:

1.​ The nature of the case, e.g., claim for damages, breach of contract,
negligence, etc.
2.​ The issues in the case, i.e., the areas of dispute between the parties.
 215

3.​ A summary of the facts in issue or the theory of the case, i.e., the
facts that have been established or will be established during the
trial.
4.​ A brief statement of the evidence of the witnesses, i.e., how the
issues in the case will be proved.

The opening of the case is very important as it sets the course of the trial
on the right and transparent track. Unfortunately, in most civil trials in
subordinate courts, the provisions of Order 18, Rules 1 and 2, are seldom
followed. If a party does not open the case and state exactly the line they
propose to take, they will have an opportunity to change the case they
originally had in mind. Secondly, they will not only call the witnesses
they originally intended to call but may also call other witnesses on
different points to support different cases if the original case does not
progress as satisfactorily as they wanted. Thirdly, if the case is not
opened, a party cannot be confined to their original case, as the judge
does not know what the original case is.

2.​ Peremptory Hearing (P.H.)/ Examination in Chief/ Producing

Evidence in Support of the Case
As soon as the case is opened by the plaintiff, he will call the witnesses
on his side one after another and examine them in line with his case. If
there is any documentary evidence to produce, this is the stage to present
it to the court. The evidential rule of the burden of proof requires that the
plaintiff must discharge his burden by raising a prima facie case in
relation to the relevant issue. If the plaintiff fails to discharge his burden
on a balance of probabilities, i.e., fails to raise a prima facie case in
relation to his claim, the suit should be dismissed at once by the judge,
and it would not be proper to call for the defense evidence (25 CWN 409
PC). In other words, if the plaintiff fails to raise a prima facie case, it is
 216

the duty of the defense lawyer to raise the point of ‘no case to answer for
the defendant’. If the judge is convinced that the plaintiff has failed to
prove a prima facie case in favor of his claim, he will dismiss the suit. It
should be remembered that if the defendant has to give any opening
speech, it will come after the evidence of the plaintiff has been presented
to the court. Any defense opening speech should, therefore, concentrate
on the matters intended to be established through the evidence tendered
on behalf of the defense, together with a summary of the case theory for
the defense.

3.​ Cross-Examination and Re-examination

After a party examines their witnesses in chief, their opponent has the
right to cross-examine them. Cross-examination typically follows
immediately after the examination-in-chief. Once cross-examination is
complete, the party calling a witness may recall them for
re-examination. The purpose of re-examination is to clarify, explain, or
develop matters arising from the cross-examination, with the aim of
limiting any potential damage to the case.

4.​ Summing Up/ Closing Speech/ Argument

Once evidence is closed, i.e., after hearing both the evidence for the
plaintiff and the defendant, the pleaders will be called upon to argue
their cases. The party beginning will have their argument at the end
(Order XVIII/Rule 2 and Part-XIII of the Civil Suit Instruction Manual).
Thus, usually, the defendant's counsel goes first with their closing
speech. In a closing speech of a civil trial, the counsel will normally
substantiate the following points:
 217

a.​ Reinforcing the client's story into a coherent whole as far as the
evidence has supported it. This is to persuade the judge of the
merits of the case (without misleading the court).

b.​ An argument on law and legal principles, if any, on the point. For
example, referring to case laws, authorities, etc.

●​ The Judgment
1.​ Pronouncement of Judgment
Once the hearing is complete, the court will either pronounce judgment
immediately or reserve it for a future date. If a judgment is reserved, the
court should fix a definite date for its delivery and provide notice of this
date to the parties. An essential aspect of a judgment is that it should
include statements outlining the grounds of the decision. Every
judgment, except those of a court of Small Causes, should contain: (i) a
concise statement of the case; (ii) the points for determination; (iii) the
decision on these points; and (iv) the reasons for the decision. A
judgment of a court of Small Causes may include only points (ii) and
(iii). Further details can be found in Order 20 of the CPC.

2.​ Decree and Order

The adjudication of a court of law may be of two types: (i) orders; and
(ii) decrees. Decree has been defined in Section 2(2) of the Code.

●​ Enforcement and Execution of Decree

1.​ Application for Execution
Execution is the enforcement of a decree through judicial processes,
enabling the decree-holder to realize the benefits of the decree issued by
the competent court in their favor. All execution proceedings begin with
the filing of an application. This application should be submitted to the
 218

court that issued the decree or, if the decree has been transferred to
another court, to that court. Once the court receives the application for
execution, it examines whether it complies with the requirements
outlined in Rules 11 to 14. If the application meets these requirements,
the court must admit and register it. Further details can be found in
Order 21 of the CPC.

2.​ Hearing of the Application

The court on which the application is pending may fix a date for the
hearing of the execution application. When the application is called for a
hearing and the applicant is not present, the court may dismiss the
application. Conversely, if the applicant is present and the other party is
absent, the court may hear the application ex parte and pass such an
order as it deems fit. Rule 106 specifies that if the application is
dismissed for default or an ex parte order is passed, the aggrieved party
may apply to the court to set aside the order.

3.​ Show Cause Notice for Execution

Rule 22 Order 21 provides for the issue of show cause notice to the
person against whom execution is applied for in certain cases.

4.​ Procedure after Notice

If the person to whom the notice is issued does not appear or does not
show causes against the execution, the court may issue a process for
execution of the decree.

5.​ Mode of Execution

Process of execution can be completed by delivery of any property
specified in the decree, or by attachment and sale, or by sale without
attachment, or by arrest and detention in civil prison of the judgment
 219

debtor, or by appointing a receiver, or by affecting a partition, or in such

other manner as the nature of the relief may require.

Statutory Interpretation

●​Knowing a Statute
A statute is the embodiment of legislative authority, a written decree
enacted by a governing body such as a parliament or a president. These
laws establish broad principles that guide courts in applying legal
principles to particular circumstances. Whether prohibiting certain
actions, mandating specific behaviors, issuing declarations, or
establishing governmental procedures to serve societal needs, statutes
form the backbone of a nation's legal framework, shaping its governance
and the conduct of its citizens.

[Article 152(1)]

●​What Is Statutory Interpretation?

The art of statutory interpretation involves uncovering the genuine intent
of a law by attributing its words to their plain and customary
significance. This process encompasses determining the authentic
meaning behind the language employed within a statute. Courts are not
at liberty to interpret laws arbitrarily; instead, they adhere to established
principles that have emerged through their ongoing interpretation
exercises. These principles serve as guiding lights, ensuring that legal
interpretations remain grounded in reason and consistency, upholding
the integrity and fairness of the judicial process.
 220

●​Rules of Statutory Interpretation

1.​ Rules of Interpretation as laws;
2.​ Rules of Interpretation as guidelines

Rules of interpretation are those rules which are developed by the judges
by way of interpretation, and these rules are ever-evolving and act as
guidelines.

Statutory rules provided by the General Clauses Act, Evidence Act,

Constitution etc, provides a rule of interpretation binding on the Courts.

●​Need for Statutory Interpretation

1.​Proper Application and Enforcement of Law
Statutory interpretation ensures that laws are correctly applied and
enforced by providing clarity on their meaning and intent. Without
proper interpretation, there is a risk of misapplication or
non-enforcement of laws, leading to legal uncertainty and undermining
the rule of law.

2.​Certainty
Clear interpretation of statutes provides individuals and organizations
with a reliable understanding of their legal rights and obligations. It
reduces ambiguity and confusion, allowing people to make informed
decisions and plan their actions accordingly. Legal certainty promotes
stability, predictability, and confidence in the legal system, facilitating
smooth functioning within society.

3.​Avoid Inconsistency
 221

Statutory interpretation helps to resolve ambiguities and reconcile

conflicting interpretations of laws. Consistency in legal decision-making
is essential for ensuring fairness and equity, regardless of jurisdiction or
individual circumstances. By avoiding inconsistencies, interpretation
promotes confidence in the administration of justice and upholds the
integrity of the legal system.

4.​Ensure Justice
Interpretation of statutes is crucial for upholding principles of justice,
fairness, and due process. Courts use statutory interpretation to apply
laws in a manner that respects individual rights and promotes societal
welfare. By examining the language, context, and purpose of laws,
interpretation ensures that legal outcomes align with underlying
principles of justice and the common good.

●​Approach to Interpretation
It is the function of the Judges to ascertain the ‘will of the legislature’.

1.​Functional Approach
This approach involves interpreting the words used in a statute with the
aim of discerning the intention of its framers. Judges focus on the
purpose or function behind the statute, seeking to give effect to the
underlying legislative intent. The functional approach considers the
broader context, including the legislative history, societal needs, and
policy objectives, to arrive at a meaningful interpretation.

2.​Analytical Approach
The analytical approach confines interpretation solely to the words used
in a statute, presuming that the framers intended precisely what the
words convey. Judges emphasize the literal meaning of the text, without
 222

delving into extrinsic factors such as legislative intent or policy

considerations. This approach prioritizes linguistic analysis and strict
adherence to the plain meaning of the words, aiming to avoid judicial
activism and maintain the separation of powers.

3.​Free Intuition
This term suggests a more subjective approach to statutory
interpretation, wherein judges rely on their personal intuition or
discretion to ascertain legislative intent. It implies a departure from strict
adherence to either the functional or analytical approaches, allowing
judges greater freedom in interpreting statutes based on their own
understanding and judgment. While free intuition may offer flexibility in
adapting to unique or evolving legal circumstances, it also raises
concerns about consistency, predictability, and the potential for judicial
bias.

●​Rules of Interpretation
1.​The Literal Rule
The literal rule involves interpreting legislation based solely on the
literal, ordinary, or natural meaning of the words used in the statute.
Judges must consider the explicit language of the legislation rather than
speculating on its intended meaning. Words in a statute are to be
understood in their plain, ordinary sense, even if this leads to outcomes
that may be considered undesirable.

For instance, it was held in Stock v Frank Jones [1978] 1 All ER 848, If
the words used are quite clear they must be applied even though one
may dislike the statute or even though the interpretation may inflict
hardship on those affected by the legislation. In order to arrive at the
proper meaning of the words used in a statute a judge may have recourse
 223

to dictionaries, to the definition section [of an Act], and to previous

cases decided on the meaning of similar words. The approach of literal
rule has given rise to the concept of “literalism”.

Tindall CJ in The Sussex Peerage [1844]: If the words of the statute are
in themselves precise and unambiguous, then no more can be necessary
to expound those words in their natural and ordinary sense.

In London North Eastern Railway co. vs Berriman [1946], A railway

worker's death while working on the railway did not entitle his widow to
claim compensation because the statute only provided compensation for
employees killed while engaging in ‘relaying and repairing’ tracks. The
deceased worker had been performing routine maintenance and oiling,
which did not fall under the literal interpretation of ‘relaying and
repairing’. It has been argued that the distinction in the type of work
being done does not necessarily alter the level of danger faced by the
workers.

2.​The Golden Rule

The golden rule was established in Grey v. Pearson where Lord
Wensleydale stated that the ordinary sense of the words in a statute must
be adhered to unless it results in an absurdity. In such a case, the
ordinary sense of the words may be modified to avoid the absurdity, but
this modification should not extend beyond what is necessary to prevent
the absurd outcome.

Under the Road Traffic Act 1960, it was an offense to drive a vehicle
adapted to carry more than seven passengers at a speed exceeding 30
mph. In a notable case involving this act, the vehicle in question was a
minibus designed to transport 11 passengers. The court interpreted the
 224

term “adapted to” as synonymous with “suitable for”, meaning that the
minibus was considered a vehicle adapted to carry more than seven
passengers due to its design and capacity, even if there had been no
physical modifications. [Maddox vs Storer, 1963]

In R v National Insurance Commissioner (ex parte Connor) [1981] 1 All

ER 769 it was held that though Mrs. Connor satisfied all conditions for
widow's allowance under the Social Security Act 1986, the Act was to
be applied subject to the rules of public policy which demanded that she
should not receive a widow's allowance on account of her deliberate and
conscious killing of her husband.

3.​The Mischief Rule

The mischief rule of interpretation which was laid down in Heydon's
case (1584) 3 Co Rep 7a is considered to be the most flexible rule. This
rule is also considered to be an extension of the golden rule. Under this
interpretation reference to the history of legislation is permitted to
discover the mischief or wrong which the parliament intended to put
right. The statute has to be viewed as a whole, and its intention
determined by construing all the constituent parts of the statute together
and not by taking detached sections. A statute should be construed as
will suppress the mischief and advance the remedy and avoid evasions
for the continuance of the mischief.

In Smith v Hughes, 1960, the prostitute was not actually in the street but
was sitting in the house on the first floor and tapping on the window to
attract the attention of the men walking. It established the Mischief Rule
legal principle that soliciting from a house, while not physically being in
the street, can still constitute soliciting “in a street” within the meaning
of legislation aimed at preventing solicitation in public places.
 225

4.​Harmonious Interpretation
Harmonious interpretation of a statute is a legal principle that involves
interpreting a specific provision of a statute in a manner that is
consistent with the statute as a whole and with other related laws. The
aim is to find a reasonable interpretation that gives effect to the entire
statute, ensuring that different provisions complement each other and
work together without contradiction. This method of interpretation
prioritizes the overall purpose and intent of the statute, promoting a
unified and coherent legal framework. By interpreting statutes
harmoniously, courts and legal professionals strive to uphold the
legislative intent and avoid absurd or conflicting outcomes.

●​ Order of the Three Rules

There is no set order as to the application of the three rules. The literal
rule is supposed to be used unless it leads to a manifest absurdity in
which case it will give way to the golden rule. It is ultimately for the
court to decide which of the three rules it will use. It has been
commented that the three rules are contradictory, at least to a degree, and
there is no way in which the outsider can determine in advance which of
them the courts will make use of to decide the meaning of a particular
statute. Better course would be to implement the recommendation of the
Law Commission 1969 by expressly permitting judges to adopt a
purposive approach to statutory interpretation which will have potential
to give rise to judicial creativity in the open.

●​Different Parts of a Statute

●​ Short Title
The short title is a brief name given to a statute, used for ease of
reference.
 226

The short title of a modern statute is generally found in a section near

the end of the Act. However, in statutes in Bangladesh it is usually found
in the first section. Authorities suggest that the short title may not be
taken into account in construing a statute. Though it stands in the body
of the statute, it is, said Lord Moulton, “a title given to the Act solely for
the purpose of facility of reference.....Its object is identification and not
description” [Vacher & Sons [1913] AC 107]

Therefore, it merely identifies the act but does not contribute to

interpreting its provisions.

●​ Preamble/ Long Title

The long title, often referred to as the preamble, set out at the head of the
statute, provides a comprehensive description of the general purpose of
the Act and outlines its main objectives. It serves as a legitimate aid in
construing the enacting parts of the Act. It can play a crucial role in
interpreting ambiguous terms or phrases within the statute. It sets out the
legislative intent and can guide judges in resolving ambiguities by
providing context and clarification.

While the preamble is an important part of the Act and can be referred to
for ascertaining its general scope and aiding in its construction, it does
not carry the same weight as other enacting words within the statute.
When the enacting words in a statute are clear, the preamble may have
no effect and cannot control or override the enacting words.

●​ Marginal Notes/ Side Notes

These are brief notes or summaries found in the margins of a statute.
Side notes act as quick reference mechanisms to help locate sections,
 227

and while not part of the statute's text, they can assist judges in
understanding and interpreting specific provisions by highlighting key
points or clarifying ambiguities. However, their use is typically
supplementary.

●​ Interpretation Section
In the UK the interpretation section is usually found either at, or near the
end of the Act. Their purpose is to provide legal definitions of important
words and concepts referred to in the Act, within the context of that Act.

●​ Commencement
‘Commencement’ means when the Act was brought into force. Unlike in
Bangladesh this section is usually found in the UK legislation at or near
the end of the Act. This section may specify a particular date for
commencement, or as in the case of the Disability Discrimination Act
1995 empower the Government to bring into force by order. And this
will be done by commencement orders in the form of statutory
instruments.

●​ Schedule
Schedules are appendices at the end of a statute that provide additional
details, lists, or explanations related to the main text. If there is any
ambiguity in the statute's operative parts, judges may refer to the
schedules for clarification. Schedules can offer specific examples or
further define terms used in the statute.

An Act may contain one or more schedules. The contents of these

schedules vary; for example, a schedule may contain detailed provisions
that are not included in the main body of the Act itself.
 228

●​ Interpretation & Construction

Interpretation or construction is the process by which the courts seek to
ascertain the meaning of legislation through the medium of authoritative
forms in which it is expressed. Interpretation differs from construction in
that the former is the art of finding out the true sense of any form of
words—that is, the sense which their author intended to convey—and
enabling others to derive from them the same idea which the author
intended to convey. Construction, on the other hand, involves drawing
conclusions about subjects that are beyond the direct expression of the
text, based on elements known from and given in the text. These
conclusions are in the spirit, though not within the letter, of the law.

●​ Harmonious Construction
In Sultana Begum v Prem Chand Jain [1997], If it is found that the
application of two sections of an Act is clashing to each other, such
interpretation is to be adopted which makes the application of both
sections harmonious. A section of a law is to be construed in such a way
that the provisions of another section do not become meaningless.

●​Aids to Statutory Interpretation

Statutory and non-statutory aids of interpretation:

1.​ Statutory aids are illustrated by the General Clauses Act and by
specific definitions contained in individual Acts, as well as by
certain provisions of a general nature which are, for example,
contained in the Penal Code.

2.​ Non-statutory aids of interpretation are illustrated by common law

rules of interpretation (including certain presumptions relating to
 229

interpretation), and also by case law relating to the interpretation of

statutes.

●​ Intrinsic Aids
Intrinsic aids are elements within the statute itself that help judges
interpret its meaning. Here are some key intrinsic aids:

●​ Short Title of an Act

●​ Long Title of an Act

●​ Marginal Notes or Side Notes

●​ Schedule

●​ Example, Illustration, Explanation, or Proviso

Statutes often include examples, illustrations, explanations, or provisos
within their sections. These elements are integral parts of the statute and
directly impact its interpretation. They can clarify the application of the
law, illustrate its scope, and provide exceptions or conditions that
modify the general rules.

●​ Extrinsic Aids
Extrinsic aids are tools outside the text of a statute that help judges
interpret and understand legislation. Here are some key extrinsic aids:

●​ Law Commission Reports

These reports provide background on the purpose of legislation,
particularly the problem or “mischief” the law aims to address. Judges
 230

can use these reports to understand the context and intent behind a law
but not to directly interpret the specific wording of the statute.

●​ Hansard
This is the official transcript of debates in Parliament. Judges may refer
to Hansard to gain insights into what legislators intended when they
passed a law, especially when the wording is ambiguous or unclear.
However, using Hansard is often limited to situations where the
legislative intent is not obvious from the text itself.

●​ Dictionary Definitions
Courts may consult dictionaries to understand the ordinary meaning of
words used in legislation. This is particularly useful when a word is not
defined within the statute itself, and its common meaning needs
clarification.

●​ Legal Textbooks
These are scholarly works that provide detailed commentary and
analysis on legal principles and specific areas of law. Judges might refer
to legal textbooks for a deeper understanding of legal concepts,
doctrines, and interpretations that could influence their decision-making.

●​ Common Law Presumptions

These are established principles derived from case law that guide the
interpretation of statutes. For example, there is a presumption that
legislation does not intend to change common law unless explicitly
stated. Other presumptions include that statutes do not operate
retrospectively and that they should be interpreted to uphold individual
rights unless clearly intended otherwise.
 231

Regulatory Authorities

Regulatory authorities, also known as regulatory agencies or regulatory

bodies, are governmental or non-governmental organizations responsible
for overseeing and enforcing regulations within specific sectors or
industries. These agencies are entrusted with the authority to create,
implement, monitor, and enforce rules, standards, and policies designed
to govern the conduct, practices, and operations within their respective
domains.

●​Role of Regulatory Authorities

●​ Creation of Regulations
Regulatory authorities are responsible for developing regulations that
govern various aspects of society, economy, public health, safety,
environment, and other areas of public interest. These regulations are
typically established through legislative processes or delegated powers
granted by legislation, executive orders, etc.

●​ Implementation of Regulations
Once regulations are established, regulatory authorities are tasked with
implementing and operationalizing them. This involves developing
procedures, guidelines, and protocols for compliance, as well as
disseminating information to stakeholders about their rights, obligations,
and responsibilities under the regulations.

●​ Monitoring & Oversight

Regulatory authorities monitor compliance with regulations through
various mechanisms, including inspections, audits, investigations, and
 232

data analysis. They collect and analyze data, conduct research, and
collaborate with other agencies and stakeholders to assess the
effectiveness of regulations and identify areas for improvement.

●​ Enforcement of Regulations
Regulatory authorities have the power to enforce regulations by taking
appropriate enforcement actions against individuals, businesses,
organizations, or entities that violate regulatory requirements.
Enforcement actions may include issuing warnings, fines, penalties,
sanctions, license revocations, or legal proceedings, depending on the
severity of the violation and applicable laws.

●​ Advisory & Consultative Role

Regulatory authorities often serve in an advisory or consultative
capacity, providing guidance, expertise, and technical assistance to
stakeholders, policymakers, legislators, and the public. They may offer
recommendations, interpretations, and clarifications of regulations, as
well as engage in public outreach, education, and awareness campaigns.

●​ Coordination & Collaboration

Regulatory authorities collaborate with other governmental agencies,
international organizations, industry associations, advocacy groups,
academia, and other stakeholders to coordinate regulatory efforts, share
best practices, address emerging issues, and promote regulatory
harmonization, consistency, and coherence.

●​ Continuous Improvement
Regulatory authorities engage in ongoing efforts to review, evaluate, and
update regulations to ensure their relevance, effectiveness, and
responsiveness to changing circumstances, technological advancements,
 233

and societal needs. This process may involve stakeholder consultations,

public hearings, regulatory impact assessments, and periodic reviews of
regulatory frameworks.

The regulatory authorities play a crucial role in ensuring compliance

with laws and regulations across various sectors, including finance,
telecommunications, and environmental protection. One of their main
roles is to establish and enforce standards, guidelines, and policies to
promote transparency, accountability, and fairness within their respective
industries. For example, the Bangladesh Securities and Exchange
Commission (BSEC) regulates the country's capital markets, ensuring
investor protection and market integrity through oversight, enforcement,
and the formulation of regulations. Similarly, the Bangladesh
Telecommunication Regulatory Commission (BTRC) oversees the
telecommunications sector, setting licensing requirements, monitoring
service quality, and addressing consumer complaints.

Regulatory Authorities in Bangladesh

Bangladesh Bank Directorate General of Drug
Bangladesh Badminton Federation Administration
Bangladesh Cricket Board Directorate General of Health
Bangladesh Football Federation Services
Bangladesh Atomic Energy Directorate General of Medical
Regulatory Authority Services
Bangladesh Bar Council Directorate General of Nursing
Bangladesh Council of Scientific and Midwifery
and Industrial Research Directorate of National Consumer
Bangladesh Economic Zones Rights Protection
Authority Institute of Architects Bangladesh
 234

Bangladesh Energy Regulatory Institution of Engineers,

Commission Bangladesh
Bangladesh Export Processing Insurance Development and
Zone Authority Regulatory Authority of
Bangladesh Film Censor Board Bangladesh
Bangladesh Fire Service & Civil Mailing Operator and Courier
Defence Services Licensing Authority
Bangladesh Food Safety Authority Microcredit Regulatory Authority
Bangladesh Inland Water Ministry of Housing and Public
Transport Corporation Works (Bangladesh)
Bangladesh Investment Ministry of Road Transport and
Development Authority Bridges
Bangladesh Medical and Dental Ministry of Shipping (Bangladesh)
Council National Housing Authority
Bangladesh Road Transport (Bangladesh)
Authority National Institute of
Bangladesh Securities and Biotechnology
Exchange Commission Non-Government Teachers'
Bangladesh Sericulture Registration and Certification
Development Board Authority
Bangladesh Telecommunication Seed Certification Agency
Regulatory Commission University Grants Commission
Civil Aviation Authority of (Bangladesh)
Bangladesh

●​ The Bar Council

The Bangladesh Bar Council (BBC) is a statutory regulatory body
established under the Bangladesh Legal Practitioners and Bar Council
Order, 1972. It is tasked with regulating the legal profession and
maintaining professional standards among advocates in Bangladesh. The
 235

BBC operates under the Ministry of Law, Justice, and Parliamentary

Affairs and plays a pivotal role in upholding the rule of law and ensuring
access to justice for all citizens.

●​ Constitution of the Bar Council [Art 5, 5A, and 6]

●​ The BBC is constituted for a term of 3 years with 15 members, of
whom the Attorney General is the ex-officio Chairman.
●​ Seven members shall be elected in the prescribed manner by the
advocates on the roll from among their number.
●​ Seven members shall be elected by the advocates who are
members of the local Bar Associations included in the group, from
among themselves.
●​ No advocate shall hold the office of member of the BBC for more
than two consecutive terms.
●​ There shall be a Chairman and a Vice-Chairman of the Bar
Council. The Attorney General for Bangladesh shall be the
ex-officio Chairman of the Bar Council. The Vice-Chairman of the
Bar Council shall be elected in the prescribed manner by the
members of the Council from among themselves. The Chairman
and the Vice-Chairman of the Bar Council shall have such powers
and functions as may be prescribed.

●​ Status of Bar Council [Art 3]

The Bar Council shall be a corporate body having perpetual succession
and a common seal, with power to acquire and hold property, both
movable and immovable, and to contract, and shall by the said name sue
and be sued.

●​ Powers and Functions of the Bar Council [Art 10]

 236

a.​ to admit persons as advocates on its roll, to hold examinations for

purposes of admission, and to remove advocates from such roll;
b.​ to prepare and maintain such roll;
c.​ to lay down standards of professional conduct and etiquette for
advocates;
d.​ to entertain and determine cases of misconduct against advocates
on its roll and to order punishment in such cases;
e.​ to safeguard the rights, privileges, and interests of advocates on its
roll;
f.​ to manage and invest the funds of the Bar Council;
g.​ to provide for the election of its members;
h.​ to lay down the procedure to be followed by its committees;
i.​ to promote legal education and to lay down the standards for such
education in consultation with the universities in Bangladesh
imparting such education;
j.​ to perform all other functions conferred on it by or under this
Order;
k.​ to do all other things necessary for discharging the aforesaid
functions.

●​ Enrolment of Advocates in General

●​ Primary Conditions
A person shall be qualified to be admitted as an advocate if he
fulfills the following conditions, namely:
a.​ he is a citizen of Bangladesh;
b.​ he has completed the age of twenty-one years;
c.​ he had obtained:
i.​ a degree in law from any university situated within the
territory which forms part of Bangladesh; or
 237

ii.​ a bachelor's degree in law from any university outside

Bangladesh recognised by the Bar Council; or he is a
barrister;

●​ Secondary Conditions
1.​ The applicant must apply in Form “A” prescribed by the
BBC which must be accompanied by the following:
●​ Satisfactory evidence of applicant’s date of birth;
●​ Satisfactory evidence of qualification under Art 27;
●​ Two testimonials from person in good position as to the
character and conduct of the applicant;
●​ Affidavit stating that the statement made in the
application in form “A” are true and accurate; and
●​ A receipt of payment of a fee of Tk 1200 (R 59 of the
Bangladesh Legal Practitioners and Bar Council Rules
1972).

2.​ Every person before being admitted as an advocate must take

pupilage for a continuous period of 6 months in the Chamber
of an Advocate with 10 years standing (R 60).

3.​ Every applicant will have to sit for the written examination
for four hours. (R 60A).

4.​ Every applicant who has qualified in the written examination

must pass the viva voce examination held under the direction
of the Enrolment Committee. (R 60B).

5.​ Every person seeking enrolment to the BBC shall have to

take such further legal training and post examination
 238

pupilage before enforcement of Sanad as may be determined

by the BBC.

6.​ Every applicant who has successfully completed all the

above conditions may be granted a Certificate of Enrolment
by the Enrolment Committee and when such a certificate is
granted the certificate holder will have legal right to practice
as an advocate in the court under a particular Bar
Association. (R 62)

●​ Enrolment of Advocate to the HCD

●​ Primary Conditions [Art 21, R 65A)
No advocate, other than an advocate permitted to practice before
the High Court immediately before the commencement of this
Order, shall be permitted to practice before the High Court unless:

a.​ He has practiced as an advocate before subordinate courts in

Bangladesh for a period of two years;
b.​ He is a law graduate and has practiced as an advocate before
any High Court outside Bangladesh notified by the
Government in the official Gazette; [Art 21]
c.​ He has, for the reason of his legal training or experience,
been exempted by the Bar Council from the foregoing
requirements of this clause on the basis of the prescribed
criteria;
d.​ He was called to the Bar in the UK or have obtained higher
2nd Class in LLM from any recognized universities and
further worked with a Senior Advocate of the Supreme Court
in his chamber for at least 1 year (R 65A);
 239

e.​ He has held a judicial office for a period of at least ten years.
Such judicial officers shall not be required to appear for a
written test (R 65A).

●​ Secondary Conditions
1.​ The advocate will have to make application for permission to
practice in the HCD in a prescribed form which must be
accompanied by the following:

●​ A certificate from the concerned Bar Association

stating that the advocate is a regular member of his Bar
Association and has been in practice for a continuous
period of 2 years; or

●​ A certificate showing that the advocate was called to

the Bar in the UK or has obtained a higher second class
in the LLM from any recognized university and further
worked with a senior advocate of the supreme court for
at least one year; and

●​ A list of 25 cases either civil or criminal or both in

which the advocate appeared before the concerned
courts; and

●​ A receipt/ bank draft showing payment of High court

permission fee of Tk 5000; and

●​ One size of the passport size photograph of the

advocate;
 240

2.​ Every applicant for permission to practice in the HCD shall

have to sit for both written and viva voce as and has to pass
the same. (R 65A)

●​ Bangla Bhasha Procholon Ain, 1987

The Bangla Bhasha Procholon Ain, 1987 (Bengali: বাংলা ভাষা প্রচলন
আইন, ১৯৮৭, ‘Bengali Language Implementation Act, 1987’ is an Act
passed by the Parliament to give full effect to Article 3 of the
Constitution of Bangladesh.

According to Section 3 of this Act:

1.​ All records, correspondences, laws, court proceedings, and other
legal actions must be written in Bengali in all courts, government
or semi-government offices, and autonomous institutions in
Bangladesh.

2.​ Appeals or petitions submitted in any language other than Bengali

to the offices mentioned will be deemed illegal and ineffective.

3.​ Government staff or officers who violate this Act will be accused
of violating the Bangladesh Civil Servant Order and Appeal Rules,
and appropriate actions will be taken against them.

Legal Aid

The rise of the welfare state in the twentieth century introduced the
concept of legal aid for those unable to afford litigation costs. Legal aid
provides assistance in legal matters both in and out of court for indigent
litigants. The high cost of the modern justice system often prevents
 241

people from accessing justice, leading to the famous remark, “Justice is

open to all like the Ritz Hotel.” The aim of legal aid schemes is to
ensure equality of justice, as enshrined in Article 7 of the Universal
Declaration of Human Rights. Access to the court relies on three
conditions: Payment of court fees, other incidental costs, and assistance
from a skilled lawyer. Legal aid encompasses both court-related and
non-court-related matters, such as consultation and pre-action
negotiation. Developed countries like the USA, UK, and many European
nations have established comprehensive legal aid networks to assist
litigants throughout the legal process.

●​Legal Aid in Bangladesh

The Universal Declaration of Human Rights, as well as the Constitution
of the People's Republic of Bangladesh, emphasize the principle of
equality of justice for all citizens. However, despite constitutional
provisions ensuring equality before the law and equal access to justice,
many indigent litigants in Bangladesh face barriers to defending their
rights due to financial constraints. The majority of the population,
suffering from poverty and lack of basic necessities, often cannot afford
legal representation or access to the courts. Despite constitutional
protections and ideals of the rule of law, the reality for many citizens is
one of injustice and denial of their fundamental rights. The legal aid
movement in Bangladesh did not gain significant government support
until 2000, when the Legal Aid Act 2003 was passed with financial
assistance from the Canadian International Development Agency
(CIDA). Prior to this government initiative, legal aid programs operated
sporadically through various non-governmental organizations across the
country.

●​ Legal Aid through NGOs

 242

Legal aid movements in the USA and UK have largely been driven by
private voluntary organizations, including legal aid societies, social
service organizations, law school clinics, and Bar Associations. In
Bangladesh, leading NGOs such as Bangladesh Legal Aid and Services
Trust (BLAST), Ain O Salish Kendro (ASK), Madaripur Legal Aid
Association, Bangladesh Women Lawyers Association, Bangladesh
Environmental Lawyers Association, and Bangladesh Shishu Adhikar
Forum (BSAF) have pioneered the legal aid movement. While most of
these NGOs focus on specific areas within the country, some have
nationwide coverage. In addition to handling court cases, these NGOs
offer training, mediation, legal awareness, and counseling schemes to
assist indigent individuals in resolving their legal issues.

●​ NLSO
The Government of Bangladesh introduced legal aid services in 1994
with the establishment of the National Legal Aid Committee. This
initiative was formalized into legislation with the Legal Aid Services
Act, 2000 (LASA), which led to the creation of the National Legal Aid
Services Organization (NLASO). Despite initial slow progress,
momentum increased in 2009 with the appointment of the first full-time
Director at NLASO. Significant reforms followed between 2009 and
2012, including raising income ceilings for eligibility, updating panel
lawyers' fees, expanding coverage, introducing new case management
formats, and forming Upazila and Union level committees. Most
recently, the government approved the establishment of district legal aid
offices in all 64 districts, with judicial officers set to be posted in these
offices.

●​ Provisions of the Legal Aid Act, 2000

●​ What does the term “Legal Aid” mean?
 243

Section 2(a) of the Legal Aid Act, 2000 specifies that the term ‘Legal
aid’ means providing a person who is poor, or financially helpless and
incapable of invoking justice for many other socio-economic conditions
with the following:

1.​ counseling and assistance in a litigation to be filed, filed or

pending in any court of law;
2.​ giving honorarium to any conciliator or arbitrator appointed to
conciliate, or mediate any case under the provisions of the Code of
Civil Procedure, 1908; and any other law in force.
3.​ giving any other assistance including expenditure of the case etc.
4.​ giving honorarium to always be fixed by Regulation.

●​ Who is eligible for Legal Aid? / Means Test

As per Rule 2 of the Legal Aid Nitimala 2014 the following persons will
be entitled to receive legal aid:

1.​ Any person incapable of earning or partly incapable or jobless or

whose yearly income is not more than Taka 1,50,000.00 in case of
receiving legal aid from the Supreme Court and Tk. 1,00,000.00 in
other cases;
2.​ Any person who is incapable wholly or partially to do any job or
who is jobless;
3.​ Any freedom fighter who is incapable of earning more than Tk.
1,50,000.00 per year;
4.​ Any laborer whose yearly income is not more than Tk.
1,00,000.00;
5.​ Any child;
6.​ Any person victim of human trafficking;
 244

7.​ Any women or children who are victims of either physical, mental
or sexual harassment;
8.​ Any person who is shelterless or vagabond;
9.​ Any person from minor races, ethnic sects or communities;
10.​ Any person aggrieved as a victim of domestic violence or who
is vulnerable to such violence;
11.​ Any person who is receiving old age benefit;
12.​ Any helpless mother with V.G.D card;
13.​ Any women or children who are victims of acid throwing;
14.​ Any person who has been allotted a house or plot to any ideal
village;
15.​ Poor widow, any poor women deserted by her husband;
16.​ Any handicapped person;
17.​ Any person who is financially incapable to protect or defend his
rights in the court;
18.​ Any person who is arrested under preventive detention law and
is financially incapable to defend his rights;
19.​ Any person who has been considered by the court financially
incapable or poor;
20.​ Any person who has been considered or recommended by the
Jail Authority financially incapable or poor;
21.​ Any person considered by the Organisation from time to time
financially incapable or poor for the purpose of the Legal Aid Act.

●​ Application for Legal Aid

Section 16, as amended by various Acts, outlines the process for
applying for legal aid. Applications are to be submitted to the
appropriate committee depending on the nature of the case. If an
application is rejected by the Special Committee, the aggrieved party can
appeal to the Board within 60 days. However, there is no remedy if the
 245

Supreme Court Committee or District Committee rejects the application.

The steps for submitting an application involve addressing it to the
Chairman of the relevant committee based on the type of legal matter.

●​ Areas of Legal Aid & Fees for a Legal Aid Lawyer

The Legal Aid Regulations 2015 outline payment rates for legal aid
lawyers, including maximum amounts for various tasks such as drafting
documents and conducting hearings. These rates range from taka 200 to
taka 1,500, depending on the nature of the case. For Supreme Court
cases, Regulation 6 is referred for fee details.

●​ National Legal Aid Organisation

Section 3 of the Legal Aid Act 2000 provides for an organization named
National Legal Aid Organisation which will organize and monitor
proper functioning of this Act.

●​ National Management Board

Section 5 establishes the National Legal Aid Organisation's management
and administration under a National Management Board. Section 6
outlines the composition of this board, including the Minister of Law
and Justice as Chairman, government and opposition MPs nominated by
the Speaker, the Attorney-General, various secretaries, and
representatives from legal, law enforcement, and civil society sectors.
Members serve a two-year term and can be removed by the government
without reason.

●​ Main Functions
Section 7 of the regulations outlines ten functions of the Board,
including providing legal aid to poor litigants, supervising various
 246

committees, and undertaking projects to promote legal aid

activities.

●​ Supreme Court Committee

Section 8A outlines the establishment of the Supreme Court
Committee, with a judge from the High Court Division as its
Chairman, members including the Secretary of the Supreme Court
Bar, advocates with human rights experience appointed by the
Chief Justice, Deputy Attorney Generals nominated by the
Attorney General, representatives from NGOs nominated by the
Board, and two additional members nominated by the Attorney
General and the Chairman.

●​ District Committee
Section 9 outlines the composition of the District Committee,
which includes various officials such as the District and Session
Judge as chairman, along with representatives from different
agencies and organizations like the District Magistrate, District
Police Superintendent, District Civil Surgeon, and others. These
members serve a two-year term, but the government reserves the
right to remove any member without explanation.

●​ Functions of the District Committee

Section 10 outlines six key functions of the District
Committee, with a focus on legal aid. The important
functions include providing legal aid to poor litigants,
determining conditions for legal aid applicants, implementing
legal aid projects, and reviewing applications from
lower-level committees for legal aid approval.
 247

●​ Upazila and Union Committee

According to Section 12, the government can establish committees
at the upazila or union level through gazette notifications. These
committees will consist of 14 members, and their composition and
functions will be outlined in rules.

●​ Special Committee
Section 12A introduces the provision for the Board to establish a
Special Committee for Labour Courts, Chouki Adalats, etc.,
through a gazette notification with government approval. This
committee will comprise 14 members, and its functions and
structure will be defined by regulations.

●​ The Fund of the Board

Section 13 of the Legal Aid Act outlines the sources of funding for
the Board, which include government allocation, foreign
donations, local bodies, organizations, and companies. Initially, the
Canadian International Development Agency (CIDA) funded the
legal aid program.

●​ Panel of Lawyers
Section 15 establishes provisions for panel lawyers, specifying
criteria for inclusion in different panels based on practice
experience. The Supreme Court Panel requires at least 5 years of
practice in the High Court Division, the District Court Panel
requires 5 years of practice in district courts, and the Special
Committee Panel requires 5 years of practice in Labor Courts or
Chouki Adalats. Additionally, once legal aid is granted, the Board
or Committee will appoint a lawyer from the respective panel,
taking the applicant's choice into consideration where possible.
 248

●​ Supply of Papers and Documents

Section 19 specifies that legal aid lawyers and the court handling
the case will provide all necessary papers and documents related to
the case free of charge to the applicant seeking redress, except for
court fees.

●​ Director
The National Legal Aid Organisation's director, appointed by the
Government of Bangladesh, will oversee its decisions' implementation
and act under the Board's direction. However, the director must obtain
prior permission from the Government or the Organisation before
appointing employees and staff, as per Section 21.

●​ Defects, Challenges & Recommendations for the Legal

Aid Law in Bangladesh
1.​ Lack of Awareness
The main obstacle to achieving the objectives of the legal aid scheme is
the lack of awareness among indigent litigants, lawyers, and judges.
Despite the scheme's purpose, when poor litigants seek legal aid, they
are often discouraged and referred to private lawyers instead.
Additionally, there is evidence of misappropriation of legal aid funds by
officers or employees, despite claims that all funds are used for legal aid.

2.​ Proper Monitoring and Follow-up Measures

The duties and responsibilities of Coordinators should be clearly
defined, and it should be mandatory for them to report to the District
Judge. There are issues with follow-up measures, particularly regarding
the performance of panel lawyers after a case is allocated to them. It is
crucial for the District Committee to regularly review the progress of
 249

legal aid cases to ensure lawyers fulfill their responsibilities. Without

proper follow-up, appointed lawyers may become disinterested. There
should be an effective system to remove irresponsible lawyers from the
panel.

3.​ Monthly Meeting

The suggestion is to streamline the process for assigning legal aid to
indigent clients. Currently, petitions are considered at the monthly
District Committee meeting. The recommendation is to allow the
Chairman (District Judge) to appoint a lawyer immediately upon
receiving an application, with approval by the Committee at their next
meeting. This would expedite the process for clients in need.

4.​ Quorum Crisis in the District-Committee

The District Committee is mandated to hold monthly meetings, but
there's often a problem with achieving a quorum, which impacts the
committee's activities and progress. It's crucial to address this quorum
crisis to ensure the effective functioning of the District Committee.

5.​ Organizational Shape & Limitations

In each district, there is a legal aid cell accessible to poor litigants
seeking assistance. However, despite some applications being accepted
and aid provided, there are reports of panel lawyers demanding
additional fees from the litigants. This situation is exacerbated by
corruption and mismanagement of legal aid funds by both legal aid
officers and panel lawyers, undermining the effectiveness of the legal
aid scheme.

6.​ Legal Aid Committees in Thanas and Upzillas

 250

Although Regulations have been gazetted in 2011 regarding formation

and functioning of legal aid committees in Upzillas and Thanas and
committees have also been formed, their meaningful activities are yet to
be counted.

7.​ Legal Aid in Labour Courts and Chowki Adalats

Legal Aid Act 2000 was amended in 2013 and through this amendment
provisions have been introduced to form a special committee and a
special Legal Aid Committee has also been formed in all Labour Courts
and Chowki Adalats. However, the progress and activities of these
committees are yet to see the light.

8.​ The Ceiling & Determining the Means of the Litigants

According to the Legal Aid Nitimala 2014, a litigant can receive legal
aid if their yearly income is not more than Tk. 1,50,000 for Supreme
Court cases or Tk. 1,00,000 for other cases. The ceiling should be raised
because individuals earning Tk. 8,000-9,000 per month rarely have
pending cases and are unlikely to seek legal aid.

9.​ Incidental Legal cost

The Legal Aid Regulation of 2015 sets incidental costs for different
court divisions and types of cases, but these amounts are considered
insignificant given current realities. Litigants must bear these costs
throughout the legal process, including court fees, stamp costs, and other
expenses. Without assistance from the legal aid fund, it is impractical for
poor litigants to afford these expenses, especially when their monthly
income is minimal. Furthermore, there is no provision for payment for
essential documents like vakalatnama, which poses a significant
challenge for lawyers. The government needs to intervene to ensure the
procurement of necessary documents for smooth case management and
 251

to maximize the utilization of legal aid funds. Additionally, incidental

legal expenses often outweigh lawyer's fees, exacerbating the financial
burden on litigants.

10.​ Complicated Procedure

There is no uniform printed form for application for legal aid. The
available form is very cumbersome and difficult for the indigent litigants
to fill up.

11.​ Lack of Cooperation among Three Concerned Agencies

There is a significant lack of cooperation among the Legal Aid
Committee, legal aid lawyers, and legal aid clients, with communication
issues being particularly problematic, especially for clients in jail.
There's evidence that appointed lawyers often fail to contact accused
persons in jail, and poor communication networks further exacerbate
difficulties for clients in remote areas. Legal aid clients frequently
express dissatisfaction with the performance of their lawyers, who may
not cooperate wholeheartedly due to inadequate government-set legal
fees, leading to frustration among clients and a lack of enthusiasm
among lawyers for cases referred to them by the committee.

12.​ While the fees for panel advocates were raised in 2015 through
an amendment to the Legal Aid Regulation 2015, there is currently
no provision for fees for senior advocates. Typically, senior and
expert advocates require significant compensation and may decline
briefs without substantial remuneration. To address this, provision
should be made within the legal aid scheme to engage senior or
expert advocates, particularly for complicated cases.
 252

13.​ In criminal cases, fees are fixed in the Legal Aid Regulations
2015. However, only Tk. 200 is allocated for preparing G.D., Tk.
700 for the hearing and disposal of appeals, and an incidental cost
of Tk. 100. This amount is so negligible that even a newly enrolled
lawyer would not be encouraged by such a meager fee.

14.​ The Regulations 2015 provide that for legal aid in a pending
case, an application to the Chairman of the Supreme Court
Committee must be made. The Chairman of such a committee is a
sitting judge of the High Court Division. It is not possible for a
poor litigant to file an application directly to the chairman. Few
lawyers and even judges have little knowledge about legal aid
facilities available for poor litigants in Supreme Court cases.