Comperative Analysis of judiciary In Bangladesh and India

Submitted to

Dr. Sarkar Ali Akkas Professor Dept. of Law & Justice Southeast University

Submitted by

Tahshin Ahmed Id: 2011220301009 LLM (Final) Dept. of Law & Justice Southeast University

Introduction: The judicial system of Bangladesh, modeled after the British system, is similar to that of neighboring countries. Besides the 1972 constitution, the fundamental law of the land, there are codes of civil and criminal laws. The civil law incorporates certain Islamic and Hindu religious principles relating to marriage, inheritance, and other social matters. The judicial system consists of a Lower Court and a Supreme Court, both of which hear civil and criminal cases. The Lower Court consists of administrative courts (magistrate courts) and session judges. The Supreme Court also has two divisions, a High Court which hears original cases and reviews decisions of the Lower Court, and an Appellate Court which hears appeals from the High Court. The upper level courts have exercised independent judgment, recently ruling against the government on a number of occasions in criminal, civil and even political trials. The trials are public. There is a right to counsel and right to appeal. There is also a system of bail. An overwhelming backlog of cases remains the major problem of the court system.

The judiciary system that is followed in India is also based on the British Legal System that was prevalent in the country during pre-independence era. Very few amendments have been made in the judicial system of the country. Supreme Court in India The Supreme Court is the highest judicial body in India. The Supreme Court came into power on 28th January 1950; just two days after the Constitution of India came to effect. In the initial stages, it had its office in a part of the Parliament House. The Supreme Court is endowed with many duties and responsibilities. The biggest responsibility is that it is the highest court of appeal and is also the protector of the Constitution in the country. Bangladesh legal system derived from British Common law system. At present judicial system of Bangladesh change a lot but there are many similarities between Bangladesh and Indian judicial system.

Judicial Systems in Bangladesh The present legal system of Bangladesh owes its origin mainly to 200-year British rule in Indian Sub-Continent. Bangladesh seceded from Pakistan in December of 1971. Following independence, the British-era legislation that had continued to be applied in Pakistan, as well as the post-1947 legislation enacted by Pakistan, remained the basis of Bangladeshi personal status laws. Structure of Bangladesh judicial SystemThe Civil Courts Act, 1887 and the Criminal Procedure Code, 1898 as amended up to 2007 is the main legal basis of the present court structure particularly the subordinate judiciary in both civil and criminal side. The judiciary system of Bangladesh is composed of two divisions: The Supreme Court and the Subordinate Court.

The Supreme Court of Bangladesh The Supreme Court Bangladesh in is classified in to two divisions, the High Court and the Appellate Court. The Appellate Court decides over appeals against the decisions taken by the High Court. The Appellate Court has supreme powers of drafting new amendments or additions in the law.

The Subordinate Courts and Tribunals The Subordinate Courts are the basic courts of the judicial system in Bangladesh. These subordinate courts can be classified broadly as 1) Criminal Courts and 2) Civil Courts. These are further subdivided as: 1) Criminal Courts: a) Sessions Courts b) Metropolitan Session Courts c) Special Criminal Courts d) Metropolitan Magistrate Courts e) Magistrate Courts 2) Civil Courts: a) Assistant Judge Court b) Senior assistant Judge Court c) Joint District Judge Court d) Additional District Judge Court e) District Judge Court

f) Family Court g) Money loan Court h) Bankruptcy Court

Bangladesh Judicial System: A Brief Overview The Judiciary of Bangladesh comprises the Supreme Court, the Subordinate Courts and the Administrative Tribunals constituted under the provisions of the Constitution. The courts are constituted under the provisions of Part VI of the Constitution. Supreme Court The highest court in Bangladesh, the Supreme Court was created by the order Article 94(I) of the constitution of the People Republic of Bangladesh, which is comprised of two divisions, namely, the Appellate Division and the High Court Division. The Supreme Court consists of the Chief Justice, known as the 'Chief Justice of Bangladesh', and of such number of other judges as the President thinks necessary to appoint in each division.

The Appellate Division The appellate division of Bangladesh is comprised of Chief Justice along with other most senior justices. The Chief Justice presides over this division. He is the administrative head of all the judges of Appellate and High Court Division. It has no original jurisdiction. The main function of Appellate Division is to discharge appeal case charged against the verdict of High Court Division. The decision of Appellate Division is final and all the citizens of Bangladesh are bound to obey its decision. The source of jurisdiction of the Appellate Division is two: the constitution and the ordinary law. However, an ordinary law can give the Appellate Division only appellate jurisdiction as stated in Article 103(4) of the constitution.

The High Court Division The High Court is given independent powers and jurisdiction by the Constitution of Bangladesh. Thus the High Court, though being the subdivision of Supreme Court, works completely in its own style and follows different laws than the Supreme Court. The High Court hears original legal matters as well as appeals against the subordinate court judgments.

The High Court has been assigned authority to control and administer all the lower Courts and tribunals. There are two benches of High Court Division. One is Single Bench and the other one is Divisional Bench. Single Bench is consisted of one judge; Double Bench is consisted of more than one judge. Like the Appellate Division, the High Court division (HCD) has also two sources of powers and jurisdiction according to the Article 101, namely the Constitution and the ordinary law. Hence the jurisdiction of the High Court Division may be divided into two categories ordinary or general jurisdiction and Constitutional jurisdiction. Subordinate Courts The subordinate courts can be divided into two broad categories: civil courts and criminal courts. Civil CourtsThere are five classes of civil courts, namely, (a) the Court of the District Judge; (b) the Court of the Additional District Judge; (c) the Court of the Joint District Judge; (d) the Court of the Senior Assistant Judge; and (e) the Court of the Assistant Judge. The Court of the District Judge exists at the top of the subordinate civil courts. District Judges are helped by such number of Additional District Judges as are sanctioned by the government in accordance with workload of a district. Immediate below the Court of District Judge is the Court of the Joint District Judge. Then there are Senior Assistant Judges who exercise higher pecuniary jurisdiction. In the lowest ebb is the Court of Assistant Judge. The jurisdiction of a District Judge or Joint District Judge extends, subject to the provisions of section 15 of the Code of Civil Procedure, 1908 to all original suits cognizable by Civil Courts. The jurisdiction of a Senior Assistant Judge and an Assistant Judge extends to all suits of which the value does not exceed four lac Taka and two lac Taka respectively. An appeal from a decree or order of a District Judge or Additional District Judge 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 lay to that Court. An appeal from a decree or order of a Joint District] Judge lies to the District Judge where the value of the original suit in which or in any proceeding arising out of which the decree or order was made did not exceed five lac Taka and to the High Court Division in any other case. An appeal from a decree or order of a Senior Assistant Judge or an Assistant Judge lies to the District Judge. Every suit is valued in terms of money having regard to its subject matter and the relief claimed according to the provisions of the law called Suits Valuation Act of 1887.

Criminal CourtsCriminal courts deal with serious criminal offenses, some of which may even lead to a death sentence. The Session Courts have three layers of Judges: namely, Sessions Judges, Additional Session Judges, and Joint Session Judges. The Session Judge and the Additional Session Judge have more powers than the Joint Session Judge. The Session Court Judges also hear civil matters. The subordinate criminal courts are mainly the creation of the Code of Criminal Procedure, 1898 (the Code). According to the Code basically there are two classes of Criminal Courts in Bangladesh, namely, (a) Courts of Sessions; and (b) Courts of Magistrates. Again there are two classes of Magistrate, namely, (a) Judicial Magistrate and (b) Executive Magistrate. There are four classes of judicial Magistrate, namely, (a) Chief Metropolitan Magistrate in Metropolitan Area and Chief judicial Magistrate to other areas; (b) Magistrate of the first class, who shall in Metropolitan Area, is known as Metropolitan Magistrate; (c) Magistrate of the second class; and (d) Magistrate of the third class. The different types of tribunal courts in Bangladesh include but are not limited to: income tax, administrative, election, and public safety tribunals.

Other Courts Moreover, there are some special courts in Bangladesh, such as the Family Courts, the ArthaRinAdalat, Labour Courts, Court of Settlement, Nari-0-Shishu NirjatonDomon Tribunal, etc. These are the creation of various special statues. Usually the judges of the above mentioned civil and criminal courts are appointed to run these special courts and tribunals. For example, the Assistant Judges are appointed to run the Family Courts and the District and Sessions judges are appointed to run the Nari-0-Shishu NirjatonDomon Tribunals (Repression on Women and Children Prevention Tribunal).

There are labour courts and labour appellate tribunals to decide labour disputes, administrative tribunals and administrative appellate tribunal to decide service disputes of public servants, income tax appellate tribunal to decide income tax disputes, custom, excise and VAT Appellate tribunal to decide disputes regarding custom and excise duties and VAT, court of settlement to decide disputes about abandoned properties, special judges to try corruption cases against public servants, special tribunals to try criminal cases under the Special Power Act 1974 and Nari-oShishuNirjatan Daman Adalats to decide cases of crimes committed against children and women. To decide election disputes the election tribunals are constituted with judicial officers. Other tribunals follow the same procedure. Family courts have been constituted with assistant judges to decide family disputes.

Court martial formed under the provisions of the Army Act, Air Force Act, and Navy ordinance, tries the offences committed by the members of the armed forces, and the decision of such a court cannot be challenged in the supreme court.

Judicial System in India:

The Indian Judicial System is one of the oldest legal systems in the world today. It is part of the inheritance India received from the British after more than 200 years of their Colonial rule, and the same is obvious from the many similarities the Indian legal system shares with the English Legal System. The frame work of the current legal system has been laid down by the Indian Constitution and the judicial system derives its powers from it. The Judiciary of India is an independent body and is separate from the Executive and Legislative bodies of the Indian Government. The judicial system of India is stratified into various levels. At the apex is the Supreme Court, which is followed by High Courts at the state level, District Courts at the district level and LokAdalats at the Village and Panchayat Level. The judiciary of India takes care of maintenance of law and order in the country along with solving problems related to civil and criminal offences. Features of Indian Judicial system Inspite of India adopting the features of a federal system of government, the Constitution has provided for the setting up of a single integrated system of courts to administer both Union and State laws. The Supreme Court is the apex court of India, followed by the various High Courts at the state level which cater to one or more number of states. Below the High Courtsexist the subordinate courts comprising of the District Courts at the district level and other lower courts. An important feature of the Indian Judicial System is that its a common law system. In a common law system, law is developed by the judges through their decisions, orders, or judgments. These are also referred to as precedents. Unlike the British legal system which is entirely based on the common law system, where it had originated from, the Indian system incorporates the common law system along with the statutory law and the regulatory law. Another important feature of the Indian Judicial system is that our system has been designed on the pattern of the adversarial system. This is to be expected since courts based on the common law system tend to follow the adversarial system of conducting proceedings instead of the inquisitorial system. In an adversarial system, there are two sides in every case and each side presents its arguments to a neutral judge who would then give an order or a judgment based upon the merits of the case. Indian judicial system has adopted features of other legal systems in such a way that they do not conflict with each other while benefitting the nation and the people. For example, the Supreme Court and the High Courts have the power of judicial review. This is a concept prevalent in the American legal system. According to the concept of judicial review, the legislative and executive actions are subject to the scrutiny of the judiciary and the judiciary can invalidate such actions if

they are ultra vires of the Constitutional provisions. In other words, the laws made by the legislative and the rules made by the executive need to be in conformity with the Constitution of India. Jurisdiction & Powers of the Courts The powers and the jurisdiction of the Supreme Court, the High Courts and subordinate courts like the District Courts are discussed below.

Supreme Court of India The Constitution of India secures justice to all its citizens apart from securing liberty, equality, and promoting fraternity. Indian democracy the Supreme Court plays important role of safeguarding the fundamental rights of citizens which includes providing fair justice also. One of the most important powers of the Supreme Court of India is that any law declared or order/judgment passed by it is binding on all the courts within the territory of India. The Supreme Court of India is the highest court of law, the entire judicial system of the country is controlled by it. Article 124 of the Constitution provides for the establishment and the composition of the Supreme Court. Article 131 to 140 deeds with the powers of the Supreme Court. The Supreme Court of India has three kinds of jurisdiction : (i)Original jurisdiction (ii) Appellate jurisdiction (jii) Advisory jurisdiction.

Original Jurisdiction refers to the power of the court to hear disputes when they arise for the first time. By exercising its power of Original jurisdiction the Supreme Court can hear disputes between,

Government of India (GoI) and one or more States, or GoI& any State or States on one side and one or more States on the other, or Two or more States, if it involves a question - of law or fact - on which depends the existence or extent of a legal right.

The Supreme Court has also been conferred the power to issue directions or order or writs under Article 32 of the Constitution for the enforcement of any of the rights provided under Part III of

the Constitution, including the Fundamental Rights. This is referred to as the Writ jurisdiction of the Supreme Court. The writ jurisdiction of the Apex court under Article 32 is part of its original jurisdiction. Appellate jurisdiction refers to the power of the Apex court to hear appeals against any judgment, decree or final order (or sentence) of a High Court in a constitutional, civil or criminal case, where exists a substantial question of interpretation ofthe constitution, ora law of general importancein case of a death sentence awarded in criminal matters. Apart from the original, appellate and writ jurisdiction, the Supreme Court also has special advisory jurisdiction regarding matters referred to it by the President if India under Article 143 of the Constitution. The Apex court also has the power and authority to review any order or judgment passed by it as well as transfer cases from one High Court to another or from the District Court of one state to the District Court of another State.

High Courts of India The High Courts of India are the supreme judicial authority at the State level. There are currently 21 High Courts in the country and of these the oldest High Court of India is the Kolkata High Court, which was established in the year 1862. Their powers and jurisdiction are similar to that of the Apex court, but with a few differences

Any law declared or orders/judgments passed by them are not binding on the other High Courts (HCs) of the country or the subordinate courts which fall under the purview of the other HCs unless the other High Courts choose to follow such law or order or judgment. Their territorial jurisdiction is varied.

The High Courts are the appellate authority for a State or group of States and get a lot of matters in appeal from the subordinate courts. Both the Supreme Court and the High Courts are courts of record and have all the powers associated with such a court including the power to punish for contempt of itself.

The Subordinate Courts The District Courts are at the top of all the subordinate or lower courts. They are however under the administrative control of the High Court of the State to which the district court belongs to. Their jurisdiction is confined to the districts they are responsible for, which could be just one or more than one. The original jurisdiction of the District Courts in civil matters is confined by not just the territorial limitations, but by pecuniary limitations as well. The pecuniary limitations are laid down by the legislature and if the amount in dispute in a matter is way above the pecuniary jurisdiction of the District Court, then the matter will be heard by the concerned High Court of that State.In case of criminal matters, the jurisdiction of the courts is laid down by the legislature. The decisions of the District Courts are of course subject to the appellate jurisdiction of the High Courts. Apart from these judicial bodies who enforce the laws and rules laid down by the legislature and executive and also interpret them (the Supreme Court & High Courts), there are numerous quasijudicial bodies who are involved in dispute resolutions. These quasi-judicial bodies are the Tribunals and Regulators. Tribunals are constituted as per relevant statutory provisions and are seen as an alternative forum for redressal of grievances and adjudication of disputes other than the Courts. Some of the important tribunals are, Central Administrative Tribunal (CAT), Telecom Disputes Settlement Appellate Tribunal (TDSAT), Competition Appellate Tribunal (COMPAT), Armed Forces Tribunal (AFT), Debt Recovery Tribunal (DRT), etc. The kind of cases the tribunals hear are limited to their specific area. That is TDSAT can hear only matters related to telecom disputes and not matters of armed forces personnel. So the area of operation of these tribunals are marked out at the beginning itself by the statute under which its constituted. The same hold true for the various Regulators like TRAI, DERC, etc. They regulate the activities of companies which fall under their purview as per the statute. Thus, the Indian Judicial System is a mix of the Courts and the Tribunals & Regulators, and all these entities working together as part of an integrated system for the benefit of the nation

Hierarchy of Courts in Criminal matters: * Supreme Court * High Court * Sessions Court * Assistant Sessions Judge * Chief Metropolitan Magistrate * Chief Judicial Magistrate * Metropolitan Magistrate * Special Metropolitan Magistrate Sub Divisional Judicial Magistrate * Judicial Magistrate of * Judicial Magistrate of First Class Second Class Powers and punishments given by different Courts under sessions court: Sessions court: Life imprisonment and below, no death penalty and fine. Assistant Sessions Judge: Up to 10 years and fine. Chief Metropolitan magistrate: Up to 7 years and fine. Chief Judicial Magistrate: Up to 7 years and fine. Sub Divisional Judicial Magistrate: Up to 3 years and Rs. 10,000 fine. Judicial Magistrate Of First Class (Taluka level): Up to 3 years and Rs.10,000 fine. Judicial Magistrate Of Second Class (Taluka level): Up to 1 year and Rs.5,000 fine. Metropolitan magistrate: Up to 3 years and Rs. 10,000 fine. Special Metropolitan magistrate: Up to 3 years and Rs. 10,000 fine

Comparison Between Bangladesh And India judicial system:

comparison between Bangladesh and india are

Similarity:
Bangladesh legal system derived from British Common law system. At present judicial system of Bangladesh change a lot but there are many similarities between Bangladesh and Indian judicial system. Bangladeshi Law and Indian law is largely based on English common law because of the long period of British colonial influence during the period of the British Raj. Much of contemporary Bangladesh law shows substantial Indian, European and American influence. Various legislations first introduced by the British are still in effect in their modified

forms today. During the drafting of the Bangladesh Constitution, laws from India, Ireland, the United States, Britain, and France were all synthesized to get a refined set of Indian laws The judiciary system that is followed in India is also based on the British Legal System that was prevalent in the country during pre-independence era. Very few amendments have been made in the judicial system of the country Common law (also known as case law or precedent) is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action. A "common law system" is a legal systemthat gives great precedential weight to common law, on the principle that it is unfair to treat similar facts differently on different occasions.The body of precedent is called "common law" and it binds future decisions. In cases where the parties disagree on what the law is, a common law court looks to past presidential decisions of relevant courts. Both Bangladesh and India are common law based country In both India and Bangladesh, the procedural law of the land as well as most commercial and corporate laws are modeled on English laws. English case law is often referred to and relied upon both by lawyers and judges. There is a great tradition and emphasis on oral arguments. Counsels are seldom restrained in oral arguments and complex hearings may well take days of arguments to conclude. The highest court in Bangladesh, the Supreme Court was created by the order Article 94(I) of the constitution of the People Republic of Bangladesh,it is a court of record which means that the records of its decisions and proceedings are preserved and published. The decisions of the Supreme Court are binding on all the courts of Bangladesh, The Supreme Court of lndia is the highest judiciary body, responsible to ensure justice to all . The Supreme court also has powers to review its own judgment or order. The Supreme Court of India is a court of record which means that the records of its decisions and proceedings are preserved and published. The decisions of the Supreme Court are binding on all the courts of India. The Supreme court also has powers to review its own judgment or order. The Supreme Court of lndia is the highest judiciary body, responsible to ensure justice to all. The Supreme Court under Article 142 of the Constitution, has the constitutional mandate to pass such order as may be necessary for doing complete justice in any case before it. All authorities, civil or judicial are under obligation to follow such orders.

In Indian democracy, the Supreme Court plays important role of safeguarding the fundamental rights of citizens which includes providing fair justice also.Justice which is the soul of a democratic society, must be administered without fear or favor. Integrity, Impartiality and Intelligence are some of the important characteristic independent judiciary in a democratic setup.

Disimilarity:

The structure of the courts in the two India and Bangladesh differ greatly. India is a federal republic, where both the central government and the government of different states are situated. The Constitution of India has therefore, divided the powers of Union and the State Government. As such with the Supreme Court at the Centre, there are also High Courts in each and every state. Under a High Court, a number of courts, both civil and criminal have been provided for in the hierarchy. But in Bangladesh, there is unitary form of government. The highest court is Supreme Court of Bangladesh which has two divisions, High Court and the Appellate Court. Appeal from High Court lies before the Appellate Court of Bangladesh if leave to appeal is granted. All other courts, civil or criminal are subordinate courts to that of the Supreme Court. Supreme Court of Bangladesh deals with all sorts of disputes arising between parties residing in districts of Bangladesh. .On the other hand, India deals with disputes between two states and even with differences arising out of between the Union Government and State Government by Supreme Court There was 21 High Courts in India, but recently in year 2012 introduced Tripura, Meghalaya and Manipur the new states high court declared in Loksabha. in Bangladesh there are only 1 High court for whole country So here we find vary few disimilarity between India and Bangladesh judicial system.

Conclusion:
Basic reason of comparison between two judicial system is to find out the similarities and dissimilarities between their judicial system and to take better system from the foreign judicial system to upgrade own state judicial system. The origin of both judicial system are same thats mean British common law though there exist both similarities and dissimilarities due to, variation of culture, social structure, political needs economic status and so on and changed by the way of convention as time required. Needless to emphasize that judiciary is a vital organ of any democratic setup, responsible to provide, fair and expeditious justice to all. Lot many structural reforms are required to improve the working standard of the judiciary so that the importance of this vital organ is not vitiated and the confidence of people is not shattered further. Whenever the matter of structural reforms in the

judiciary is raised, the focus is only concerned to the higher courts, that is high courts and the supreme court. None in the judiciary ever raised the problems faced by the lower Courts officials. Unless the functioning of the courts grassroots level is improved, the actual benefits of reforms will not reach the common people and the burden on higher courts can also not be reduced.

Bibliography

1. 2. 3. 4. 5. 6.

www.vakilbabu.com www.supremecourtofindia.nic www.preservearticles com Comparative Law by S.L Khanna The Legal System of Bangladesh by Abdul Halim Constitution of the People Republic of Bangladesh