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| Nusrat Jahan Nishu |
The Penal
Code of 1860, also known as the Bangladesh Penal Code, stands as a relic of
British colonial rule. Drafted under the leadership of Lord Thomas Babington
Macaulay, the Code was designed to govern a colony with rigid control and
administrative convenience. While its longevity is a testament to its
foundational legal structure, it no longer meets the complexities of a
democratic, rights-based, and modern criminal justice system.
In 2025,
as Bangladesh continues to evolve politically, socially, and technologically,
it is critical to examine whether a legal framework created over 160 years ago
still serves the aspirations of a sovereign, constitutional republic. The need
for reforming the Penal Code is not just a matter of legal housekeeping—it is
an urgent call to align criminal law with contemporary realities, uphold human
dignity, and build a just society.
A
Colonial Code In a Post-Colonial Nation
The Penal
Code of 1860 was not crafted for the people of Bangladesh but rather for the
convenience of British rulers. It reflects a time when the primary aim of
criminal law was to assert authority and suppress dissent. Today, Bangladesh is
an independent nation governed by a Constitution that guarantees fundamental
rights, equality, and justice. However, the Penal Code still carries the
language, spirit, and bias of colonial rule.
The Code
criminalizes behavior that modern democracies now view as either
constitutionally protected or socially irrelevant. Offences like sedition
(Section 124A) and “promoting enmity between groups” (Section 153A) have
frequently been criticized for being misused to stifle political dissent and
freedom of expression—rights guaranteed by the Constitution of Bangladesh under
Article 39.
The
continued presence of such laws in the criminal justice framework reflects an
outdated mindset. While these provisions may have served the colonial
administration in controlling the masses, their presence in a modern democracy
is inconsistent with constitutional norms and human rights principles.
Inadequacies
in Addressing Modern Crimes
One of the
most glaring deficiencies of the 1860 Code is its failure to adequately address
new and emerging crimes. The modern era has seen the rise of cybercrime, human
trafficking, organized crime, terrorism, financial fraud, and environmental
offences—none of which were contemplated when the Penal Code was drafted.
Although
some offences have been added through amendments and special laws (such as the
ICT Act, the Anti-Terrorism Act, or the Prevention of Money Laundering Act),
the core Code remains largely untouched. This has resulted in overlapping
jurisdictions, contradictory provisions, and confusion in enforcement.
Take, for
instance, cybercrimes. From online harassment to data theft, crimes in the
digital world are growing at an alarming rate. Yet, the Penal Code does not
adequately define such offences, nor does it prescribe clear investigative
procedures or penalties. This legal vacuum not only hampers prosecution but
also leaves victims without adequate remedies.
Gender
Justice and Protection of Vulnerable Groups
Another
major shortcoming of the Penal Code is its inadequate approach to gender
justice and the rights of vulnerable populations. Sections such as 497
(Adultery) and 377 (Unnatural Offences) were historically rooted in colonial
morality and have faced strong criticism from rights advocates.
Although
the High Court in Bangladesh has taken progressive stances in interpreting some
of these provisions, the absence of clear legislative reform leaves space for
ambiguity and misuse. Women, children, people with disabilities, and minority
communities often remain inadequately protected under the existing framework.
Moreover,
sexual offences under the Penal Code are narrowly defined and fail to capture
the full range of crimes, including marital rape, psychological abuse, or
digital sexual violence. The legal language is often archaic, with references
that are neither gender-sensitive nor victim-centred.
Punishment,
Rehabilitation, and Judicial Delay
The Penal
Code emphasizes punishment over rehabilitation, a feature characteristic of
colonial systems. In modern legal theory, the focus has shifted to restorative
justice, especially for non-violent and first-time offenders. However, the Code
does not offer adequate scope for alternative sentencing, community service, or
rehabilitation-based corrections.
Additionally,
disproportionate sentencing continues to plague the system. Minor offences
often carry severe penalties, while serious white-collar crimes receive
relatively lenient treatment. The absence of sentencing guidelines has led to
inconsistency, sometimes even injustice.
Moreover,
the judicial system in Bangladesh is heavily burdened, with courts struggling
under the weight of pending criminal cases. The archaic nature of the Code
contributes to this backlog through complex procedures, outdated evidentiary
standards, and a lack of modern legal tools.
Global
Trends and Regional Examples
Globally,
several countries with colonial legal histories have embarked on bold reforms.
India, for instance, has recently initiated efforts to replace its colonial-era
criminal laws, proposing new Bills such as the Bharatiya Nyaya Sanhita. These
efforts aim to modernize the definitions of crimes, improve victim protection,
and streamline the justice system.
Bangladesh,
too, can take inspiration from such examples and lead its own comprehensive
criminal law reform. Relying solely on piecemeal amendments—though useful in
the short term—cannot substitute for a well-planned, inclusive, and transparent
legislative overhaul.
Path
Forward: Principles for Reform
To reform
the Penal Code effectively, Bangladesh must follow a few fundamental principles:
1.
Democratization
of Lawmaking: Involve judges, lawyers, academics, law students, civil society,
and victims in the reform process.
2.
Rights-Based
Approach: Align all definitions, procedures, and punishments with international
human rights standards and constitutional guarantees.
3.
Technology
Integration: Recognize and address crimes in the digital space with robust
definitions and modern investigative tools.
4.
Victim-Centric
Laws: Shift the focus from state vs. accused to a more balanced,
victim-protective system.
5.
Decriminalization:
Remove outdated offences that criminalize morality, private choices, or
political expression.
6.
Restorative
Justice: Emphasize rehabilitation and alternative sentencing, especially for
juveniles and non-violent offenders.
Conclusion:
Time to Turn the Page
The Penal
Code of 1860 has served its time. It helped build the foundation of the
criminal justice system, but the time has come to move beyond it. Reform is not
about disrespecting history—it is about embracing the future. Bangladesh must
seize this opportunity to create a modern, fair, and efficient criminal justice
system that reflects the realities of today and the aspirations of tomorrow.
Justice
must not only be done; it must be accessible, timely, and just for all—and that
journey begins with reforming the laws that shape it.