Bangladesh got independent in 1971. But its state mechanism made basically based on laws is the continuation of colonial legacy. Though, here some laws have already been changed but its root still remains even in modern 21st century’s Bangladesh. That’s why we are facing off a lot of problem. Here, very often, police show their outrage, oppression backed by political party or government. The police force, the core administrative bureaucracy, has link with all organs of the democratic government.
British took full control of Bengal after battle of Palleshy in 1757 and then Buxer in 1764 and established its colonial domination in this subcontinent. After the 1857 mutiny, the British Crown took the full control over the Indian subcontinent. Under the 1784 India Act, Britain established direct control in India- initially through bringing East India Company’s activities under the British Parliament’s direct supervision. The 1813 Charter implemented full colonial administration and separate territorial and commercial jurisdictions for the East India Company.
The British codified laws in India in terms of the rationalization of law in the Weberian
sense to ensure “order,” “certainty,” and “uniformity”, as well as Bentham’s liberal ideas of the rule of law and equality principles. These laws, while giving a sense of uniformity to the rule of law, were also used against the local populace to suppress uprisings. The British abolished the Mughal Court and removed three-quarters of the warlord aristocracy. They established new type of Bureaucracy. They eliminated a lot of local feudal landowners and created new aristocrats tended to follow British lifestyle and that Bureaucracy.
The mechanism formed by Colonial ruler
However, by 1773 it was proposed that in matters of marriage, inheritance, and other individual affairs, Islamic laws should be applied to Muslims, and Hindu laws to Hindus. This idealization of Indigenous Indian customs and laws was, however, short lived. For instance, the British philosopher James Mill considered Indigenous Indian laws to be “a disorderly compilation of loose, vague, stupid, or unintelligible quotations and maxims selected arbitrarily from book of law, book of devotion, and books of poetry; attended with a commentary which only adds to the absurdity and darkness; a farrago by which nothing is defined, nothing established”. Based on this statement, they got chance to replace the Indian law with the western positivist law. In 1769, supervisors were appointed to the districts, who were replaced by collectors in 1772, and two sets of courts Diwani or civil and Foujdari or criminal were established for each of the 14 districts of Bengal. In 1774, these courts have been established along with administration. In 1772, the Governor General in council passed “Regulations for the police of the collectorships in Bengal, Bihar and Orison”. Under these regulations posts of Magistrate of districts were formed. These Regulations were re-enacted as Regulation XXII of 1793. Under the said Regulation the police were placed under the exclusive control of East India Company officers. Warren Hastings observed that the establishment of these courts had been giving encouragement to criminals, since the standard of evidence was not good. An attempt was made in 1775 to improve the law and order situation by establishing Foujdari Thanas, at the chief town of very large district, and a number of Chowkies at interior stations. Warren Hastings, the first Governor-General tried to minimize the defects by abolishing the Foujdari system and vesting the judges of the Civil Courts with police functions in 1781. They were given power to apprehend persons charged with a crime and a sizeable police establishment was placed directly under them for this purpose.
The Sepahi Mutiny of 1857 led the British administrators to rethink about the introduction of an effective instrument of civil administration for improvement of condition of administrative discipline in India. In 1860, the Government of India seriously took the reformation of police in the whole British India and appointed a Commission to inquire into the framework of the police system.
After Mutiny of 1857, the Act of 1858 came into force. Using this act, British Crown directly took the power from the British East India Company. Moreover, a Secretary Counsel was established for 14 State of India which would consist of 15 members. Then, in 1861, police act and the Indian Penal Code came into force. The code of criminal procedure and the Indian Evidence Act were enacted in 1898 and 1872 respectively.
As like as, Laws used by the British to further their own interests are also examined and finally the impact of the “legal” colonial legacy is explored. To begin, the codified English law administered by the courts was initially applied on Europeans residing in the sub-continent.
During 1900-1947, British laws governed the Indians. By the turn of the century, it became clear that the British had adopted a stick policy as a tool of governance. On the one hand, they created the Indian Civil Services by which they would control the Indians through Indians by appointing educated locals in the bureaucracy.
As illustrated earlier, many of the British laws are draconian and apartheid, and were against the will of the natives of India. The 1862 Code of Criminal Procedure separated jurisdictions of judges along racial lines. The FCR, the Indian Press Act, The Prevention of Sedious Meetings Act, the Rowlatt Act, the Public Safety Bill, and the Trade Dispute Bill were used to suppress and control Indians by the British and their fellows. These laws and legal structures provided huge power to the rulers that fueled direct violence and perpetuated structural violence against Indian natives. The legacy of these colonial discriminative laws is still present in today’s criminal justice system. Bangladesh still inherits the penal code, criminal procedure code, police code, jail code, and evidence act, which were introduced by the British Raj.
In today’s situation
The police act, 1861 and laws vests the superintendence of the police directly on the hands of the political executives. At the present time, the police enjoy their tenure at the pleasure of the government. They may be removed from the post at any time without any reasons. This is the situation where police forces are functioning with a greater willingness to obey the unwritten and informal orders to subvert legitimate democratic process in lieu of their personal gain. Such structure has been applied upon those who are anti-ideological of ruling party. For example, US Department of state have shown Country Reports on Human Rights Practices for 2011 on Executive summary of Bangladesh, and exposed forty-three pages report. It showed that the security forces acted independently to control civilians. The security forces committed disappearance, custodial death, arbitrary arrest and detention. An increasingly politicized judiciary exacerbated problems. Security forces infringed the citizen’s right to privacy. There were instances that the government limited freedom of speech and press, self-censorship continued, and security forces harassed journalists. The most significant human rights problems were killings and torture by security forces.
This is a system of corruption, nepotism and political influences which they use to control the people by manipulating system. For this reason, in epidemic period, this system doesn’t work most of the time. For example, when Covid-19 had rushed whole country and government enacted lockdown then security forces conducted with people as the always do. When people got crowd, often police dispersed them by stick charging. As they engaged on their duty, people tried to having safe but when they got disappeared then people making social gathering again. Here, people think police as a forcing organization, not like friendly or consulting organization. If security forces tried to make social consciousness amongst the people by conducting friendly, Covid-19 could been reduced at all. At the same time, the government officials like UNOs are cannot work independently and thus, local political leaders can manipulate the system.
So this is high time to re-think and change such colonial ‘the police act, 1861. Our police and security forces cannot be citizen friendly for having these colonial police acts and laws. The Police Act, 1861 does not put in place any mechanism to ensure external accountability unlike police legislation in the U.K, South Africa, Canada and Northern Ireland. These countries have changed their act and police having conduct with citizens friendly.
The United Nations Development Program (UNDP) has implemented a police reform project and facilitated the government’s use of a draft ordinance during the non-party interim government in 2007. Yet no legislation has been enacted because of the resistance of the political elites, as they want to use the colonial law to oppress dissents and govern the people with immunity and impunity. Finally, while the legacy of British colonialism under the guise of the law continues to haunt the Bangladesh, ultimately the responsibility to enact new laws that cater to the needs of indigenous people lies with the elected representatives of Bangladesh.
The author is studying in the Department of Arabic, University of Dhaka.