Fall 2020

LAW 344
Section 1

Class Time: Thursday 12.30-1.50

Saturday 12.30-1.50

Instructor:
Md. Mostafa Hosain
E-mail: mostafa.hosain@bracu.ac.bd
Office Hours: Posted in front of my seating (UB40511)
 Shalish
Shalish was a village sabha or council.

It was called on to settle moral and ethical issues.

Shalish could be perceived as a variation of panchayet which resolved civil issues

among local habitants.

The term shalish is derived from the word ‘Shalish’ meaning three.

It conveys the sense ‘middle’ as in middle man the third party helper in a conflict
resolution.

In traditional villages, shalish was generally conducted by a group of village people

including headmen and other local elites.
 History of Ancient Bengal

The dispute settlement of ancient Indian societies was resolved by the local
government existed. True to state that the availability of materials and evidence on
ancient India including Bengal is scanty.

From the perspective of dispute settlement, Panchayets in Northern India has been
classified into four groups.

Caste Panchayets looked after the social conduct and religious values of caste
members and settle dispute in this regard.

Single purpose Panchayets were formed to resolve inter-caste relations.

Panchayets for resolving disputes, coming always from the upper caste, were tasked to
settle dispute between a farmer and his servants or between servants of different
farmers.
 History of Ancient Bengal

Finally, village Panchayets were the core bodies being responsible for public order and settlement
of civil and criminal nature of disputes which again led by upper caste.

This category is mostly reflecting like the nature and function of ‘Shalish’ of present Bangladesh
region. In South India, village assembly or gram sabha was the body set up to patrol the societal
needs and requirements. It was bestowed to decide on the offences against the village.

As par the eastern part of India including present day of Bangladesh, not much is known
concretely about village self-government.

However, it has been presumed that the culture of northern India had influenced the dispute
settlement mechanism in this region. Literature suggests that regular village councils evolved
during Gupta period.

Sir Charles Metcalfe viewed-

“Village republics seem to last where nothing else lasts, dynasty after dynasty tumbles down,
revolution succeeds revolution. The union of village communities, each one forming a separate
little state in itself, has contributed more than any other cause to the preservation of the peoples
of India through all the revolutions and changes which they have suffered, and is in a high degree
conducive to the happiness and enjoyment of a great portion of freedom and independence”.
The function of the council encompassed maintenance of law and order,
punishment of crime, settlement of disputes, maintenance and management of
community activities.

“The most important task of the Panchayets in the whole of India was public
order; they had both police and judicial duties. disputes which did not come
under the jurisdiction of the regulatory bodies of certain professional or trade
groups or castes were settled by the village Panchayets acting as a sort of ad hoc
tribunal. the villagers did not only generally accept the settlement of disputes by
Panchayets but they identified the Panchayets with this role (Kamal Siddiqui).”

Custom and religion made the Panchayets so important that they often had an
almost sacred status-although they could hardly be described as unbiased and
objective. the Panchayets never made their decisions by voting, but by a
“consensus” arrived at by the upper caste members of the Panchayet, and this
was generally accepted by the lower castes. this method well suited the purpose
of the conservative village leadership, which wanted to maintain the status quo in
society (Kamal Siddiqui).
 History of Ancient Bengal

The existence of north india type village council in Bengal region has been challenged
on the ground of high level of internal migration and temporary nature of human
settlement due to annual floods and lower delta region. As par the Damodorpur
inscription (circa 6th century), Mallasarul plates of Vijayasena and Dharmadityya B
plate, no such village council has been found.

At the municipal level, during the Gupta empire (circa 200-500 B.C), local
administrative units were bestowed to collect revenue, maintain law and order
situation, regulation of trade and commerce etc.

During 8th century A.D., Palas ruled Bengal for four centuries establishing a strong
central government which was substituted by sena.

Grampati has been mentioned in the records of collected documents of the said
period pertinent to Bengal.

In these reigns, there had been an extended form of judicial and administrative system
prevailed at urban level not having independent mechanism. Village system, on the
other hand, remained intact.
 History of Ancient Bengal

Throughout the period of ancient history, village based dispute settlement remained core unit
and experienced least substantial change other than designation.

Siddiqui argued that ‘village self-government in the sub-continent is as old as the villages
themselves’.

He further argued that various forms of informal justice systems were related to village
administration and have been governed by the religious and cultural norms of the society.

Rig Vedas, the oldest Hindu religious script, dating from 1200BC, mentions the existence of village
self-governance in Indian territory.

The definite evidence of existence of Panchayets is found until 600 B.C. bestowing the power to
the senior persons of the village dependent on the economic and social power in the village. No
official black and white rules existed to run and regulate the system of governance and resolving
disputes (Kamal Siddiqui, 2005).

Sen viewed that dispute resolution system were existed at the village level during the period of
Dharmashastra (Hindu Religious Mandate).
 ADR during Muslim Period

Sultani Period.
Muslims entry in Bengal was initiated with Shamsuddin Ilyas Shah in 1342 and
established sovereign kingdom called Bengal. Sultans continued for two hundred
more years and developed local cultures, languages and customs. The village
based Shalish system remained untouched.

Panchayat system remained usually functional during Sultani period and Sultans
considered it as the lowest tier of adjudication.

Having five members in it, the Serpanch was appointed by Nazim or Fourzdar
and the body was bestowed to resolve civil and criminal matters in the locality
according to local customs and usage.

The outcome of the Panchayat in the dispute resolution was unchallengeable in

any forum and not even interfered by the upper administration even if the
decision would go against the laws of upper administration.
 ADR in Muslim Period
Mughal Period.

During Mughal period, Kazi system was introduced in the formal system.

The number of cases brought before the Kazi system was quite low as village panchayets
settled most of the disputes.

During this period, Panchayets were active and not got interference from the upper
authorities.

Issues of serious crimes were beyond the loop of the Panchayats but all others were
being dealt with.

Counter narratives reflect that village self governance system had been weakened during
Mughal period due to strengthening and enhancing law and order as well as revenue
system of central government.
 ADR during British Era
The East India Company in Bengal understood the urge of erasing the powers of local
community and indigenous institutions in order to weaken the traditional system and
spread influence of British regulation in the rural area.

Thus, new Zamindari system was introduced whereby they ruled and set up their agents to
collect revenues.

The Bengal Regulations of 1772, 1780 and 1781 were designed to encourage arbitration.

Bengal Resolution Act, 1772 and Bengal Regulation Act, 1781 provided parties to submit
the dispute to the arbitrator, appointed after mutual agreement and whose verdict shall be
binding on both the parties.

Self-independent village administration system had been largely weakened by the

introduction of permanent settlement in 1793.
 ADR during British Era
The Chowkidari Act of 1870 was brought to maintain law and order situation in the villages
with the help of Chowkidars.

The Act prescribes for village panchayat which is considered the emergence of existing local
government.

The annual Bengal Administration Report of 1871 as:

In the plains of Bengal these institutions seem to have been very much weakened even
anterior to British rule and in the last one hundred years of British rule and the Zamindari
theory of property, they have almost disappeared. It cannot be said that in the more
important provinces of this administration, there are absolutely no self-government
institutions. Some traces yet remain; some things are in some places regulated by village
Panchayets and by headmen, elders. But more and more, the Zamindari agents supplant
the old model and the landlord takes the place of indigenous self-rule.
 ADR during British Era

Indian Arbitration Act,1899. It was the first substantive law on the subject of arbitration but
its application was limited to the Presidency – towns of Calcutta, Bombay and Madras.
The Village Self Government Act 1919 set up village based courts and benches bestowed
with the responsibility of dealing with petty offences and disputes at the village levels
under the supervision of elected local representatives.
The Act introduced Union Board combining the function of both Chawkidari Panchayats
and Union Committees.

However, the authority of Chawkidars ‘to arrest persons committing cognizable offences
and possessing house-breaking implements or stolen property’ under the previous Act
would be continued under the authority of Union Board.

The President of the Board, to be selected from among the members of the Board, had
power to deal with matters of petty civil and criminal cases. The provincial government was
conferred discretion to constitute a Union Court, having two or more members of the
Union Board, to settle minor offences.

This Act, in lieu of strengthening traditional village administration system, imposed a

system having little concern about the expectation and needs of common people.

Arbitration Act 1940

 ADR during Pakistan Era

The Basic Democracy Act 1959 was the first step to reform local level institutions
by bringing four tier of rural local government system. The Union Council, the
lowest among all, was bestowed with multiple functions encompassing
maintenance of law and order in the villages as well as adjudication of petty
disputes.

The Muslim Family Law Ordinance 1961 and the Conciliation Courts Ordinance
1961 during Pakistan rulings were brought to deal with issues such as marriage,
polygamy, maintenance, child marriage, rights and inheritance.

Industrial Relations Ordinance 1969

 ADR during Bangladesh Period
The established Union Council during Pakistan period has been first renamed as ‘Union
Panchayat’, and again renamed as ‘Union Parishad’.

The Government of Bangladesh established village courts in 1976 to settle minor civil and
criminal disputes. The court was not to determine the right and wrong rather to settle the
problem amicably.

The far greater objective of the village court was to allow poor villagers in getting access to
justice without any cost as well as erupting unwanted arbitrary decisions of the dominant
and elite classes in the name of justice. Moreover, developing greater participation of poor
people and parties in the dispute mechanism, this was adopted.

The Panchayet System of ancient Northern India and elsewhere in the subcontinent,
including Bengal, was the lowest tier of local government which also functioned somewhat
as a court having jurisdiction over members of different castes and occupations belonging to
the same village and township. The initial development of the pachanyets was a
spontaneous phenomenon to meet the social needs, and they were quite independent in
their working………... The panchayet had jurisdiction over almost every type of dispute
arising in the village community. They decided both civil and criminal cases, and their
powers were not ordinarily bound within any financial limit.
 Laws of Bangladesh
• The Arbitration Act 2001

• Section 89A, 89B and 89C in the CPC

• Arthorin Adalat Ain, 2003/Money Loan Court Act

• Bangladesh Labour Act, 2006

• Family Court Ordinance, 1985

• The Muslim Family Laws Ordinance 1961

• The Conciliation of Dispute (Municipal areas) Board Act, 2004

• The Village Court Act, 2006

 Laws of Bangladesh

• The Bank Companies Act 1991.

• The Parbatto Chattagran Birod Nispoti Commission Ain 2001

• The Income Tax Ordinance, 1984

• The Value Added Tax Act, 1991

• The Customs Act, 1969

• The EPZ Trade Union and Industrial Relation Act, 2004

• The EPZ Trade Welfare Society and Labour Industrial Relation Act, 2010