Introduction
This book is about the nature of crime and criminality, the profile of modernization and reforms in criminal justice, and advances in the science of criminology in South Asia with special reference to India, Pakistan, and Bangladesh. The authors of this study have been chosen because of their substantive knowledge and experience in the field of crime and criminal justice, and their vast familiarity with the historical and cultural specificities of the region with respect to crime and justice. The shared perspective of this study is that the understanding the nature of crime and advances in criminal justice in any region of the world needs to be approached in terms of both external and internal forces and predicaments. On the basis of this historical and comparative perspective, the book examines crime and justice in South Asia in terms of the impacts and the imperatives of modernization and globalizationâthe forces that are primarily external in nature. The book also explores crime and justice in South Asia in terms of its local peculiaritiesâthe forces that are primarily internal in nature, and are related to the regionâs social and political histories, cultures, creeds, and religion. Some of the authors had an opportunity to deliberate on the theme and the perspective of this study at a Roundtable Discussion organized at the Annual Meeting of the American Society of Criminology in Washington DC in November 2015.
External Forces on Crime and Justice in South Asia: Colonialism, Modernization, and Globalization
Since the days of the spread of colonialism in the eighteenth and nineteenth centuries, modernization and globalization have been spreading in almost all regions of the world. With the spread of colonial modernization and globalization, a new world system of criminal justice began to expand to the colonies (Ward 2000). The new world system of criminal justice spread, although in different depths and degrees, in almost all over the colonized world from Calcutta to Kenya, Jakarta to Jamaica, and Hong Kong to Honduras. The new world system of criminal justice in the colonies was indeed an extension of the evolving modern criminal justice in Western EuropeâEngland, France, Germany, and the Netherlands. The expansion of the modern world system of criminal justice within the colonized societies continued for more than two hundred years. Within the colonial states, the old structures of medieval criminal justice were destroyed, new definitions of crime and criminality were invented (Brown 2014; Kolsky 2011, 2010; Schwartz 2010; Yang 1985), new institutions of law and law enforcement were established (Nijhar 2009), new structures of the judiciary were created, new models of prison and corrections were introduced, and research for a new science of criminology began to expand (Agozino 2003; Sengoopta 2003). This was the beginning of the first wave of modernization in criminal justice in the colonies. In South Asia, this first wave of modernization formally began with the introduction of English Common Law through the enactment of the Government of India Act of 1858. With the introduction of the English Common Law, the old Muslim Laws of Mughal India and the existing body of Hindu Laws were largely removed from criminal justice. From the mid-nineteenth century, a modern structure of criminal justice began to expand in South Asia through the India Penal Code of 1860, India Police Act of 1861, India Evidence Act of 1872, Indian Code of Criminal Procedure of 1882, and the Indian Code of Criminal Procedure of 1898. The present systems of criminal justice in India, Pakistan, and Bangladesh are structurally built on the foundations of these five legal documents of British Colonial India, and they remained largely unchanged for the past one hundred and fifty years.
The first wave of colonial modernization in criminal justice had two contrasting and competing forces. It certainly strengthened the British imperial rule in India and established an elaborate imperial system of governing crime and justice based on the absolute dominance of the British colonial elite (Kolsky 2011, 2010). Within the colonial criminal justice, native criminality was defined, law enforcement was created, and the judiciary was designed to serve the interests of the colonial governing elite. The misuse of power and the injustice to the natives were not few and far between. But at the same time, colonial modernization was also a historical predicament that liberated India from the shackles of medieval justice and the age-old customs of crime and punishment. The colonial modernization in criminal justice in India created a universalized and a centralized system of crime and justice by introducing a new body of written law, a new system of professionalized policing, and a new centralized and hierarchical system of professional judiciary. The criminalization of Satiâan old India custom of burying alive a widow with her deceased husbandâis probably one of the most civilizing impacts of colonial criminal justice in India that came through the enactment of the Bengal Sati Regulation Act of 1829 promulgated during the rule of Governor-General Lord William Bentinck. An equally civilizing statute was the Hindu Widow Remarriage Act of 1856 that decriminalized the remarriage of Hindu widows. From the perspective of systemic modernization, the passage of the Legal Practitioners Act of 1846 that paved the way for the integration of the native Indians into the colonial judiciary, and the India High Court Act of 1862 that created a modern hierarchical system of upper courts in India, were of great significance.
The second wave of modernization and globalization in criminal justice in South Asia began in the context of postcolonial developments of modern states in the 1940s and 1950s. Between the 1950s and 1980s, during the time of the Cold War, the colonial process of modernization in criminal justice further expanded in the context of national development in the postcolonial states of India and Pakistan. In the 1980s, the world witnessed the emergence of a new historical time. That was a time of the end of the Cold War, and the beginning of a new historical era for the global expansion of the market economy and new dreams for freedom and democracy all over the world (Fukuyama 2006). That was a time for the rise of a new information society, a new knowledge economy, and a new âglobal villageâ (Friedman 2007). The explosion of the new global information society from the beginning of the 1990s brought a series of new challenges for governing crime and justice in all regions of the world.
Within the realm of crime and criminal justice, that was the beginning of the second wave of modernization and globalization. Like that of colonial time, the second wave of modernization and globalization also created a series of competing and contrasting forces (Shahidullah 2014; Bohlander 2010). The second wave of modernization and globalization led to the rise and expansion of many new global and transnational crimes (Nelken 2013; Albanese 2011; Glenny 2009; Aas 2007; Naim 2005). Some of these new crimes include global illegal human trafficking (United States Department of State 2015; United Nations Office on Drugs and Crime 2014), global sex tourism (Chin 2014; Chin and Finckenauer 2012; Beeks and Amir 2006; Brown 2000), global trading of illegal drugs (Naim 2005), global illegal trading of conventional weapons (Lumpe 2000), global illegal trading of stolen cultural artifacts (Carney 2011), global illegal organ trafficking (Territo and Matteson 2011; Chery 2005), piracy in the seas (Burnett 2003), global cybercrime (Goodman 2016), and global terrorism (Bennis 2016; Burke 2016; Cockburn 2015).
With the emergence of these new transnational criminal activities, there also began to grow a new generation of transnational organized criminal gangs who were far more mobile, educated, and technologically literate than those of the professional criminal gangs of the past. The emergence of this new phenomenon of global and transnational crime has brought many new challenges in criminal justice in the societies of the developing world. These challenges are for defining the peculiarity of the new global crimes, developing new laws and statutes to control and prevent them, and devising a new system of law enforcement, justice, and punishment. The new global crimes and new transnational criminal gangs have been spreading in South Asia from the beginning of the 1990s more rapidly than any other regions of the world particularly because of South Asiaâs specific economic, political, and social dynamics, and its location as a gateway to Afghanistan in the âGolden Crescentâ and Myanmar, Thailand, and Laos of the âGolden Triangle.â
Modernization and globalization, however, have also created many new possibilities for change and reforms in criminal justice in the developing world. Modernization and globalization have brought new demands for criminalization and decriminalization, new movements for human rights and equal justice, new requirements for judicial accountability and transparency, and a new perspective for a science of crime and justice (Bassiouni 2015; Pakes 2012; Shahidullah 2014, 2009). These new demands and movements for a modern system of criminal justice have been swiftly spreading all over the world regions since the beginning of the second wave of modernization and globalization. There is hardly any region of the world where movements are not growing for criminalizing such acts as domestic violence, sexual harassment, child abuse, corporal punishment, domestic servitude, date rape, cybercrime, and human trafficking. There is hardly any region of the world where movements are also not growing for decriminalizing abortion, homosexuality, and premarital love, sex, and intimacy. The external forces of modernization and globalization are reinventing the criminal law; bringing many new definitions of crime and criminality; reinforcing the issues of democracy, the rule of law, human rights, and equal justice; creating many new institutions of criminal justice; and raising many new inter-civilizational debates and disputes on governing crime and justice.
Internal Forces on Crime and Justice in South Asia: Religion, Population, and Poverty
The nature of crime, criminality, and criminal justice in all societies and regions at the same time are also shaped and formed by their internal social and cultural forces. In no regions, and in societies of the world, modernization and globalization have completely wiped out their innate civilizational frames of reference and their internal logics and rationalities about crime and justice (Nelson 1981). Many crimes and criminalities are peculiarly and intrinsically local in nature. In the societies of South Asia, for example, the American crimes of gun violence, school shooting, and mass killing are few and far between. In America, on the other hand, the South Asian types of political and economic corruptions are exceptional in nature. The physical terrain of Afghanistan is peculiarly suitable for opium production. The criminality of opium trade, so, has remained intrinsically connected to the local economy, politics, and culture of the Afghans for centuries. The plight of organized crimes in South and Central America, high rate of homicide and violent crimes in Africa, religious violence in the Middle East, economic crimes in China and Eastern Europe, the rise of organized criminal gangs in post-Cold War Russia, and the spread of global sex tourism in Southeast Asiaâall are impacted by these regionsâ local economic, political, and cultural forces and peculiarities.
Many facets of crime and criminal justice in South Asia are shaped and molded by its internal forces and predicaments. South Asia, until the end of the British colonial rule in 1947, was a part of greater India historically known as âBharatâ (Thaper 2014; Asher 2006). There was no country named Pakistan in South Asia before 1947. There was no country named Bangladesh in South Asia befor...