India is overhauling its colonial-era criminal justice system. Should Bangladesh follow suit?

Representational image. Photo: Reuters.

Do we live in the 1800s? We don't. Everything, including socio–economic and cultural practices, have changed radically, and continue to change.  

The patterns of crime also have changed as well. But in Bangladesh, once an undivided part of British India, the criminal justice system still exists in the form devised by the British rulers.  

Against the backdrop of the Indian Rebellion of 1857, the Penal Code and a police force (law enforcement agency) comprising native manpower were established in 1860. A decade later, the Evidence Act was enacted and in 1898, the British rulers adopted the Code of Criminal Procedure (CrPC). 

All the laws under the criminal justice system were devised, in general, to teach the colonised Indians a good lesson, or to suppress the natives who were either nationalists or revolutionaries. 

We, Indians or Bangladeshis, are now independent nations. We stood witness to two catastrophic World Wars, a prolonged Cold War and consequently a series of human rights-related conventions. We are now aware of freedom of expression and democracy. So, the growing demand of the concerned citizens, including law experts, for reformation of the criminal justice system seems quite rational. 

India has recently taken steps to adopt a fresh Penal Code, CrPc and Evidence Act. This initiative, however, is not solely to uphold the modern Indian citizens' rights, but also to check changing patterns of offences including terrorism, cybercrimes and white-colour crimes like tax evasion, money laundering and more. 

The Indian government has sent three bills to a parliamentary committee for further debate and scrutiny. The country's Home Minister Amit Shah said that the purpose of unveiling the new bills is to "deliver justice, not mere punishment."

Abolishing three major laws of the criminal justice system and introducing new ones is a monumental task. But India, apparently, has undertaken the task to come out of poor police investigations that often lead to serious miscarriages of justice. The prisons are deluged with undertrials and the slow-moving courts are clogged with more pending cases. 

In the new bills, India is including the provision of filing cases in any police station, regardless of the place of incident. The new provision also says that law enforcement agency members will have to video record search and seizure operations. 

The new bills also have provisions for increased use of electronic devices and forensics during investigations. To speed up the trials, they have included the provision of holding trials through video, among others.    

In light of the proposed changes to the criminal justice laws in India, we reached out to legal practitioners in Bangladesh to find out whether the country should follow suit.

Lack of accountability

According to statistics presented in a discussion organised by a forum of South Asian rights activists South Asia Peace Action Network (SAPAN) in 2021, Bangladesh, among South Asian countries, has the highest proportion of pretrial detainees at 81.3%. The latest data from the Supreme Court reveals that there were over 35 lakh cases pending with the country's 64 district courts as of 31 December 2022.

Although the existing laws under question bind all related professionals to complete the investigation and prosecution within a certain time frame, many times they do not quite adapt well to the changing patterns of crimes, due to backdated investigation processes and prosecutorial style.  

Moreover, the existing systems hardly make the responsible persons accountable. 

"The probe report on the Sagar-Runi murder has been deferred 100 times. It is a classic example of how the existing system operates. We need to revisit the whole criminal justice system. The British made these laws keeping an eye on controlling us," said Barrister Jyotirmoy Barua, a supreme court lawyer. 

Times have changed and our constitution says people are the ultimate owners of the state.

"There has been a paradigm shift in the making of law because we now make our own laws. However, the reflection of that paradigm shift cannot be found in the existing laws," he said.

In the Penal Code, he added, there were many offences included which are irrelevant now. There are many new offences which cannot be addressed by the law. Offences change shape as society evolves. 

These backdated laws are creating the scope for cases to pile up. There are many people who are in prison under trial. As a result, justice evades the defendant. On the other hand, the accused is also deprived of justice because if the trial does not end on time, he or she stays in prison for a long time.

The CrPC sets a timeframe to conclude an investigation within a certain period. However, investigations are not completed by that time. "The government should be able to take administrative measures against officials who are failing to submit the probe report on time," said  Jyotirmoy. 

There is also a timeframe for closing a case for a judge too, according to the CrPC. However, there is no visible administrative action if a judge cannot finish a trial within a particular time. 

"There is no consequence for the judges for a delay in the trial," said Jyotirmoy. 

Outdated crimes and definitions

Supreme Court lawyer and free speech advocate Sara Hossain believes that Bangladesh also needs a thorough review, scrutiny and reform of the three laws. 

"First of all, these are colonial era 200-year-old laws. So asking for their replacement is a timely demand. We will have to look at these laws from the lens of human rights, as well as on the basis of our experience," said Sara Hossain. 

Sara Hossain recommended a couple of changes in the laws. "Sedition and obscenity, as defined in the Penal Code, should not be there. Obscenity is not looked at the way it was 200 years back."   

She said that there are some other sections in the Penal Code which do not fit in modern times. 

"I think the definition of defamation, which was considered as a criminal act, should not be in the law any longer," explained Sara Hossain, adding, "We will have to admit that there are some safeguards in those laws as well, as a result of which, we cannot throw them out wholesale."

She said that the human rights commission can also look at which section of these laws violates human rights and can recommend changes. The Law Commission can also hold discussions and gauge public perception. Then they can move forward to make new laws.

Easing the burden on the prison system

Professor Hashibul Alam Prodhan, Chairman of the Law Department at Rajshahi University, observes that the patterns and gravity of crimes have changed over the years. The availability of modern technologies in gathering evidence and the manner in which they are placed before the courts have also changed. The perception of the first and habitual offenders has changed, according to the professor.   

"There are some clauses in the existing Penal Code and CrPC that conflict with the notion of human rights. So, the British-era laws need to be amended with reference from developed as well as neighbouring countries," he said. 

Alternatives to prison have been practised in some countries. For example, India adopted 'plea bargaining' a few years ago. Under this facility, punishment for minor crimes is reduced if he or she admits their guilt and agrees to compensate the victim or victims adequately.  

This is one kind of Alternative Dispute Resolution (ADR). In Bangladesh, ADR has only been practised in civil cases. 

"Section 345 of CrPC has a similar provision but is not practised widely. If plea bargaining is introduced here, the number of criminal cases and false cases will be reduced.  It should be included in the criminal justice system," explained Professor Hashibul, adding that the Probation of Offenders Ordinance 1960 also needs to be included in a modernised form in the Penal Code. Probation halts the imprisonment of a convicted and allows him or her to stay with family under some conditions.   

Who will lead the reforms?

Professor Zia Rahman of the Department of Criminology at the University of Dhaka emphasised the importance of reforming the whole criminal justice system as the laws under question are very much interlinked.  

"We all know that justice procedures start with police interventions. No reform will bring fruit if police produce faulty FIR [First Information Report]. Then, a weak prosecution would undermine a right FIR and consequently lead to an innocent person being convicted. 

Worldwide, prisons are considered correctional centres. If prisons are operated poorly, a prisoner becomes a bigger criminal instead of a reformed person," said the professor. 

Former Inspector General of Police Nurul Huda, although agrees that the Penal Code, CrPC and the Evidence Act need reform, believes that Bangladesh doesn't need to repeal all the laws that were "written by very intelligent law experts in the British era." 

Chairman of the Law Commission, Justice ABM Khairul Haque echoed the former IGP, terming the laws "very good."  The nineteenth Chief Justice of Bangladesh, however, added that some amendments can fix the demerits of the laws. 

For example, India will include provisions for law enforcement agencies to record the process of search and seizure in the new CrPC. Justice Khairul said new inclusion such as this will reduce harassment by the police. 

The reform of the laws under question in India will focus on the increased use of electronic devices and forensics during investigations. Bangladesh has also included a wide range of digital evidence in The Evidence Act (Amendment) 2022. 

India is inserting provisions for holding video trials to speed up the trials and reduce the number of pending cases. Bangladesh has also introduced video trials during the pandemic. The new bills in India include holding trials in the absence of the accused. Bangladesh has been holding trials in absentia for around 20 years. 

There are separate laws against corruption, tax evasion and money laundering in Bangladesh. But Rajshahi University's Professor Hashibul thinks that the inclusion of the mentioned offences in the Penal Code will help strengthen the implementation of the laws.  

"There are many laws in Bangladesh. Because of scattered or segmented forms of the laws, monitoring becomes weaker. We all know that isolated laws are weak, while consolidation makes them stronger," Professor Hashibul said.

The question is who will lead the necessary reform? 

Usually, the Law Commission of Bangladesh—an independent law reform body established by the Law Commission Act 1996—shoulders the responsibilities. Since its establishment in 1996, the commission has submitted nearly 150 reports to the government. The reports were prepared upon recommendations by different stakeholders. 

However, most of the recommendations remain unaddressed. 

Bangladesh Human Rights Foundation's Chairperson and lawyer Alena Khan says the Law Commission cannot play its due role because of weakness. 

"How can a partisan or favoured leadership take a bold step? So far, a few changes have happened to the Penal laws on the basis of High Court observations. But there is no remarkable contribution by the commission. I think the presence of a strong Law Commission is a prerequisite to necessary reforms of the existing laws," Alena explained.