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A Legal History Project on

The Development of Criminal law in India


A collective attempt to study the development of criminal legal system in British India.

Shravan Kumar Anugya Varma Srinivas Atreya 1st Semester

Acknowledgement

This Project couldnt have been successfully completed without the support and guidance of our Legal History Professor, Prashant Sir and we would like to express our immense gratitude to him for his constant support and motivation that has encouraged us to come up with this project. We are also thankful to our librarian for the support rendered during the course of the research.

The Development of Criminal Law

The Muslim Legal System in India The Fallacies of the Muslim Legal System The Emergence of the English Laws Reforms in the Criminal Administration by the British Important Reforms before the Codification of Criminal Laws The codification of Criminal laws in India Post Codification and the and its effect on the general population The Modern Criminal Legal System

Introduction The development of both Criminal and civil Legal systems in india date back to the ancient period to a land that was ruled by various kings of India right from 3000 B.C.E to 1001 C.E and beyond. This country had a similar system of law for well over 4000 years. No other country in the world can claim such a credit and even though this land was divided into hundreds of small political kingdoms the law of the land called Neethi and Dharma given by the great Hindu law giver Manu were common or similar in nature. Criminal Justice in the Mughal Period The criminal law system however was not particularly viewed as a different wing of the legal system and was not separated as such till recently. It was only after the advent of Muslim rule in India in the late 11 th century and the establishment of the Mughal Empire that criminal justice took crude form. The Mughals applied the Muslim law for administration of criminal justice and managed to establish a well entrenched system in the regions of Bengal, Bihar and Orissa. A brief introduction of the Muslim Law in India The original Muslim law generally classifies criminal acts into three broad categories. They include:

Crimes against God Crimes against Sovereign Crimes against individual

Crimes of against God are generally those crimes that are strictly prohibited in the Quran and they include apostasy, drinking intoxicants, adultery. Crimes against the sovereign are crimes which are viewed with less severity in the Quran like theft, robbery or murder. These crimes are almost as the previous category and the punishments are often as grave. The final classification of crimes consists of crimes against private individuals. They are specifically those crimes committed against the human body like maiming or causing grievous hurt.

Accordingly, the Muslim law along with the classification also prescribes punishments for these crimes and there are four kinds of punishments for that are used in this law.

Kisa or Retaliation Diya or Blood Money Hadd or limits Tazeer or Discretionary Punishments

These Muslim laws and the prescribed punishments were applied and administered by learned men called Qazis in accordance with the situation or case presented before them. Kisa This punishment applied to crimes which included wilful killing or causing grave injuries and mutilation. Cases of murder were also prescribed the punishment of Kisa. In principle, kisa meant life for life or limb for limb and it was regarded as the right of man gave the injured party or his heirs a right to choose a similar injury on the accused. Diya

This punishment was prescribed for cases where injury was caused unintentionally and some amount of money or blood money as it was known was awarded to the victim by the person who caused the injury. Diya could be exchanged for Kisa but this depended on the victim and this practically meant that Diya could be used as an alternative to Kisa. Hadd This punishment was prescribed in cases which were characterised as being being against god and as Hadd literally means limit or boundary, these punishments couldnt changed or varied and they had to be followed as a matter of course. The punishments prescribed under Hadd were severe and they were used to deter criminals from those crimes which were considered to be against god. The main difference between Kisa and Hadd was that in Hadd, only the ruler or his deputy was allowed to enforce it and the victim didnt have the right to choose the punishment. This punishment was however applied in full coherence with the law and was applied only in the most severe cases. For instance, offences like Zina (illicit intercourse) could only be punished if there were four male eye witnesses and an accused person could only be convicted if he made a confession in front of the quazi. Thus the consolation from the severity of Hadd was the rarity with which it was used.

Tazeer This punishment was the kind of punishment which was directly under the discretion of the judge and there were no fixed limits to prescribe the punishments. Offences related to the sovereign often fell under the ambit of Tazeer and punishments generally consisted of exile or imprisonment. These punishments were not as severe as Hadd and it let itself be controlled by the government or other regulatory agencies. Tazeer also was used in special circumstances where Hadd or Kisa couldnt be used. Fallacies of the Muslim Criminal system The Muslim criminal system in spite of being established for many centuries still had many discrepancies and was heavily criticised by the time the East India Company set up its base in India.

One of most glaring fallacies was the fact that these laws were uncertain and ambiguous. It contained many illogicalitys and was based on those concepts which the west had already discarded many centuries back. The lack of an organization in the laws and the complexities which followed it caused many problems in the proper administration in justice. The lack of a clear distinction between private law and public law and the fact that more emphasis was given to crimes recognised as being against god and less attention was given on crimes which in reality were more severe (like maiming and murder) is a glaring example of the deficiencies of the Muslim criminal system. Also, as the laws were administered by Qazis, there always existed a certain doubt as to whether full justice was done to the case. This was because there always existed a difference in opinion among Muslim jurists and this gave a great deal of leeway to the Qazi to interpret the case and the law. Qazis could by coerced or corrupted to misapply the law. Another defect was that while the punishments appeared to be severe, they were rarely applied and were practically left unused. The primitive nature of the Muslim law in India is best seen in cases which involved murder or homicide. For instance, these crimes were considered to be private crimes and the right of the victim to claim Kisa was the right of the private man and not the right of god or the public. The state as such did not regard it as a duty to move suo motu (on its own motion) in the case of murder. Uncertainty of punishment in many other heinous crimes also resulted in the widespread dissent against the Muslim criminal system. It is very clear that this law of crimes was not entirely suited for the control of crime in society as the law was deficient and inadequate. It contained many loopholes through which many serious criminals could have their way. These glaring defects were recognised and over time many attempts were made to change and eventually replace the Muslim law.

Criminal Justice in the British Period With the emergence of the British rule in India, gradual changes started appearing in the judicial system and more importantly in the criminal administration of justice. However until the late 1850 have there were very few substantive reforms in this sector. Reforms in the criminal sectors took place in 1772, 1790-93, 1797 and 1799-1803.

Reforms of 1772 These reforms were launched by Warren Hastings in 1772 in the provinces of Bihar, Bengal and Orissa. The only change in the criminal sector in this reform was that the government recognized the menace being caused by dacoits and introduced severe punishments to weed them out. The government took upon itself to detect and bring these robbers to justice and use the most rigorous forms of punishment for the severe damage they were causing. Apart from this, Warren Hastings formulated a proposal for modification of the Muslim legal system Reforms of 1790-93 It was during this period that a systematic attempt was made to modify the Muslim criminal law and this process was initiated by Cornwallis in 1790. As observed earlier there existed many glaring defects in the Muslim legal system and as Lord Cornwallis remarked that the general state of administration of criminal justice in the provinces was exceedingly and notoriously defective. To start with, the government under Lord Cornwallis divested the Nazim of any authority over the Nizamat. He abrogated crucial Muslim laws formulated by Abu Hanifa that illogically maintained that a murdered was not liable for punishment if the crime was committed by strangling, drowning, poisoning, or with a weapon which was not made of iron. It was also declared that the kin of the deceased didnt have any right to remit the sentences of the offender. The government in 1791 also abolished the punishment of mutilation and imprisonment and hard labour were substituted in its place. The government also introduced many changes related to the Sadar Diwani Adalat. For instance, judges were required to transmit those cases to the Adalat where they disapproved the fatwa of the law officers. Another important change was that in cases related to murder, the refusal of the heir to prosecute, the non appearance of the heir in court, or when heirs were legally incompetent, the court was to forward this case to the Sadar Diwani Adalat which in turn after looking at the facts of the case would pronounce the judgement. The government also decided that murder would no longer be a private wrong and it was a matter of the state to punish the accused. The regulation IX of the Cornwallis Code of 1793 included these amendments and made some much needed changes in the criminal judicial system. Reforms of 1797

As some confusion existed on certain points in the law of homicide, the law was explained and restated in 1797 through regulation IV. The purpose of the Regulation was to finally do away with all operation of the will of the heirs in case of murder. It was now laid down that a prisoner convicted of wilful murder was to be punished without any reference to the heirs of the person killed as if, All heirs of the person slain entitled to prosecute the prisoner for Kisa, had attended and prosecuted him. That all heirs were at an age competent to demand Kisa. And that they had all demanded Kisa.

If after trial, the law officer declared the prisoner not guilty, the judge was to acquit him; but in case the judge did not approve the verdict, he was to refer the proceedings to the sadder divan Adalat. Another innovation made at the time was to substitute imprisonment for blood money (Diya).In cases where under the Muslim lawman person convicted of homicide was liable to pay blood money, the court of circuit was to commute the fine to imprisonment for such period as it considered adequate for the offence. A sentence for life imprisonment had to be referred to the Sadar Nizamat Adalat. Further, it was laid down that in any case not provided for by the regulations, the court was to adhere to the Muslim law, even if it appeared to it to be repugnant to justice, if the same was in favour of the prisoner but if against the prisoner, the court was to recommend a pardon, or mitigation of the punishment, to the governor-general-in -council. The court was also to propose a new Regulation to provide against a recurrence of a similar case in future. In this way, the rigours of the Muslim law were generally mitigated somewhat. But this was a clumsy arrangement. Regulation IV of 1797 made putting to death of a person as a sorcerer punishable as murder. It also gave power to the Sadar Nizamat Adalat to order transportation beyond the seas of convicts for life or for 7 years or more. Regulation XIV of 1797 was an important measure which was inspired by humanitarian and benevolent spirit. It was designed to remedy an evil flowing directly from those rules of the Muslim Law which condemned prisoners guilty of murder, in certain circumstances, to pay Diya. In the circumstances, the sentence to pay Diya was like condemning them to life imprisonment. To remove this evil and to mitigate the hardship of these unfortunate people, Regulation XIV of 1797 granted relief to the persons already in prison on account of their inability to pay blood money.

The offence of perjury had very much increased and therefore, by Regulation XVII of 1797 severe punishments were prescribed with a view to discourage the offenc Further reforms: 1807-1832 The process of modifying and adapting Muslim Law of crimes continued during this period. Punishments for perjury and forgery were enhanced through Regulation VIII of 1808 as these crimes had increased enormously. By Regulation XVII of 1817, the law relating to adultery was rationalised and modified. The need for four competent male witnesses was rigorously insisted upon and presumptive proof was not regarded sufficient to warrant conviction for the offence. The law of evidence too was so technical that it made conviction of a person for the offence almost impossible. The regulation laid down that conviction for the offence of adultery could be based on confessions, creditable testimony or circumstantial evidence. The maximum punishment to be inflicted for the offence was fixed at thirty nine stripes and imprisonment with hard labour of up to seven years. Married women were not to be prosecuted on such charges. The same regulation also introduced several changes in the law of evidence with a view to provide for the more effectual administration of criminal justice in certain cases. The Regulation declared that the Islamic law's exceptions to the competency or credit of witnesses are in some instances inconsistent with the end of public justice. Accordingly, it was laid down that if the Islamic law declared the evidence of a witness inadmissible on grounds which appeared to the judge unreasonable and insufficient, this was no longer to be followed: the evidence had to be taken and the Muslim law offices had to give their fatwa on the assumption that there was no objection against the witness. In 1829, through regulation XVII, a great social reform was introduced amongst the Hindus with the abolition of sati. This offence was made punishable in the same way as culpable homicide. Even persons guilty of aiding and abetting sati were to be punished by fine or imprisonment or both. The growing dominance of English Law and the downfall of the Muslim Criminal System The Muslim criminal law was archaic and primitive system and it could not have been practicable to keep it in operation for a hundred years without being reformed extensively. It was incumbent on the Government to reform the traditional law with a view to secure an effective

administration of criminal justice in the interest of protecting life, liberty and property of the people and for avoiding manifold inequalities and injustices which resulted from the strict administration of the traditional law. In the initial stages there was reluctance amongst the British administrators to interfere with the established law, but this complex was shed under the leadership of Cornwallis who was convinced that there was no alternative before the government but to undertake extensive adjustments in the system. To start with, the method adopted to modify the law was somewhat indirect and circuitous. The reason for adopting such a course was that the Muslim Law officers formed an integral part of the judicial machinery at that time. They could not be dispensed with but at the same time it was difficult to prevail upon them to depart from the traditional law and to give their fatwas according to the modified version of the law. In order to respect their religious susceptibilities and to make the system workable, the expedient adopted was to require the law officers to give the fatwas on the basis of certain supposed circumstances or fictions as they might be called. The English judges being ignorant of the customs, manners and languages of the people had not yet developed enough confidence to dispense justice without the help of the law officers, and the latter being staunch traditionalists could not be prevailed upon to accept deviations from the orthodox system. But as the time passed on the situation changed and direct modifications in the law came to be made. As seen earlier in 1793, the regulation of IX gave to the judge discretion to refer the proceedings to the Sadar Nizamat Adalat if he disagreed with the fatwa proposed. Under this statutory provision, references were constantly made by the Courts of circuits to the Sadar Nizamat Adalat and many changes were thus introduced indirectly into the law through the judicial verdicts or intervention of the Sadar Adalat. The first step in the direction of reducing the importance of the Muslim law officers was taken in 1810 when Regulation I made provisions enabling the Court of Circuit to dispense with the attendee and fatwa of their law officers.In such cases, the court was not to pass any orders or sentences itself, but was to transmit, the proceedings of the trial along with its opinion to the Sadar Nizamat Adalat which was finally to propose the sentence .The need to make such a Regulation arose out of the case which arose in Banaras in December 1809.There arose some tension between Muslim weavers and the Hindus leading to pollution of Religious places of each other. When a question of trial of mischief makers arose, the Hindus objected to being tried by the Muslim law officers who were

bound to give fatwas according to Muslim law. Accordingly, the regulation was made enabling the Court of Circuits to dispense with the fatwa of their law officers. In 1817, the Sadar Nizamat Adalat was given power to convict and sentence an accused acquitted by its law officers, and in 1822, the court got the power to acquit an accused notwithstanding the fatwa of conviction. Regulation VI of 1832 was very important insofar as it marked the end of the Muslim Criminal law as a general and compulsory system of law applicable to all Muslims and non-Muslims alike. It was reported to the government that it was offensive to the sentiments and feelings of the non-Muslims to be tried and punished under the Muslim criminal law and therefore provision was now made to enable the non-Muslims to claim exception from the same. Regulation VI of 1832 made a number of provisions. The judge was authorised to avail himself of the assistance of respectable Indians in one of the three ways while conducting a criminal trial. First, the judge could refer the entire case, or any point thereon, to a Panchayat of persons who would carry on their enquiries apart from the court, and report the result to the judge. Secondly, the judge could constitute two or more persons as assessors so that he could obtain the advantage which might be derived from their observations particularly in the examination of witnesses. Thirdly, the judge could employ the Indians more nearly as the jury. In a case in which any of the above three methods was adopted, the fatwa of the Muslim law officers became unnecessary and it could be dispensed with by the judge. It was also provided that when a person not professing the Muslim faith was brought to a trial on an offence, he might claim to be exempted from being tried under the Muslim law of crimes. The Regulation made it optional for the Sadar Nizamat Adalat as well to require a fatwa or not from its Muslim law officers according as the Adalat thought it expedient or necessary. Thus, after the regulation of 1832, it became optional for the criminal courts to seek fatwas from the law officers. The old rule which made it obligatory to obtain fatwa ion each criminal case was abrogated. The non-Muslims thus secured a dispersion from the Muslim criminal law, but it was not clarified anywhere as to what law was to be applied to them in place of Muslim law. The systematic suppression of the Muslim Criminal law began in the closing years of the eighteenth century, still, the basis of the Criminal law for long continued to be the Muslim law and it was on this foundation that the amendments had been grafted The Codification of the Laws

The most intense phase of codification in India lasted for roughly fifty years from the passage of the Charter Act of 1833 to the re-enactment of the Code of Criminal Procedure in 1882. Throughout this period, there were active debates and conflicts around how codification fit in with broader colonial priorities and practices. After 1833, an All India Legislature was created and through subsequent reforms through the years led to the enactment of the Indian Penal code in 1860. During the period from 1833-1860, changes were made in the criminal law and the important ones included that thugs came to be punished with imprisonment for life with hard labour, the status of slavery was declared to be non-recognizable in any court of the company, dacoits came to be punished with transportation for life, or with imprisonment for any shorter term with hard labour. It may also be mentioned punishments prescribed for offences by the British Administrators were very severe at first, with a view to suppress crime. But as society stabilized, law and order situation improved, and incidence of crime lessened, liberalising tendencies set in and the rigours of punishment were somewhat mitigated. The Development of Indian Penal Code and the Code of Criminal Procedure The codification of the criminal law marks the beginning of a new era in not just Colonial India but has also had a major impact on the prevailing criminal justice system. The Indian Judiciary still uses the Indian Penal Code of 1860 today and the credit for making this possible goes to Thomas Babington Macaulay. The government in Britain in 1833 appointed a commission known as the Indian Law Commission to inquire into the jurisdiction, powers and rules of existing courts and to make reports setting forth the results of the inquiries and suggesting reforms. The law commission worked intermittently on the Anglo-Indian Codes from 1834 to 1879 and one of the most important contributions of the first Law Commission was the Indian Penal Code, submitted by Macaulay in 1837 and passed into law in 1860. Given that the Royal Commission was simultaneously working on a criminal code for England, it is not surprising that Macaulay first set himself to drafting the Indian Penal Code. The English criminal law was a natural choice for codifiers in England because it had been undergoing a long process of reform. In India, however, the codification of the criminal law did not stem from an ongoing reform process but from prevalent legal

ideas about "native feelings and prejudices." Colonial lawmakers, such as Macaulay and Maine, believed that the reform of the criminal law would meet with the least social resistance. Crime, they argued, was universally understood whereas the civil law touched upon what Maine called "the local peculiarities of the country. Another important law that was codified was the code of criminal procedure. When it was first passed in 1861, the Code of Criminal Procedure fiercely guarded "privileges" or "rights" as they were alternatively described as and made the law both a symbolic and an actual marker of imperial power. The code secured the legal superiority of "European-born British subjects" by reserving to them special privileges such as the right to a jury trial with a majority of European jurors, amenability only to British judges and magistrates, and limited punishments, all this while maintaining and displaying European power and prestige. As Legislative Council Member Thomas said: "Whether the planter gets justice or not at the hand of the Native Magistrate is rather a secondary consideration; the mere fact of his having, on some trifling charge, had to appear before and be tried by a Native Magistrate, of the same caste and family, perhaps, as one of his own writers or contractors, will so lower him to their own level in the eyes of his two or three hundred coolies, that he will not be able to command their respect anymore." Thus, the codification of the criminal motion created a structure in the Indian Legal System and this structure continued to dominate through the years of British Rule in India. Criminal Administration in the Presidency Towns and Provinces The development of criminal law in India by the British led to major shifts in the administration of justice as whole. The presidency towns of Calcutta, Bombay, and Madras along with the various provinces saw a gradual change in the administration of justice and this change is a significant observation in the history of British rule in India. Emphasis must be given on the individual regions and how laws were developed in each of these regions. Criminal Administration in the Presidency Towns It is to be observed that most of the changes that took place in the legal system in India actually took place the presidency town of Calcutta. And therefore all the reforms discussed earlier apply to the Presidency town of Calcutta

Criminal law in the Madras Province The Muslim law of crimes was operative in the mouffisil of the Madras Presidency and It suffered from the same weaknesses as in Bengal before 1790.These defects were removed by legislation which followed practically the same course as in Bengal. The reforms in the criminal law introduced in Bengal by Cornwallis during 1790 to 1793, and which were consolidated in Regulation IX of 1793, were introduced in Madras through Regulations VII and VIII of 1802. Regulation XV of 1803 made provisions, practically on the same lines as the Bengal Regulation LIII of the same year, regarding the doctrine of Tazeer and also for various types of robberies, especially those committed with open violence attended with murder or other physical injuries .Regulation VI of 1811 provided for more effectual punishments of perjury and forgery. Under the Muslim Law, perjury and forgery were punishable in the discretion of the judge, by flagellation, imprisonment and public ignominy. The persons convicted of these offences were committed to various but inadequate punishments .To defines the punishments for these offences, Regulation VI was passed. Regulation I of 1818 made murder committed accidentally in execution of an unlawful intention punishable with death. Regulation I of 1822 made provisions for the more exemplary punishment of robbery by open violence. Regulation I of 1825 while making a number of modifications in the criminal law also made evidence of a non-Muslim against a Muslim admissible in criminal trials. Regulation X of 1827 introduced trial by jury in the province of Madras. Regulation I of 1830 abolished the practise of sati. Regulation XX of 1802, while making provisions for the trial of those who were regarded as guilty of these offences, failed to declare the punishment to which persons held guilty were to be subject. To maintain the just authority of the government, Regulation I of 1834 prescribed the penalty of death for such offences. By act I of 1840, The Fodder Adalat was relieved from the obligation to take a fatwa from its law officers. The reason to dispense with the fatwa were that the greater part of the existing criminal law was to be found in the Madras Code of Regulations and the rest could be ascertained from the precedents of the courts. The judges could therefore, competently administer criminal law without the aid of those officers. Criminal law in the Bombay Province

In the matter of criminal law, the position of the Bombay Province was somewhat different from that of the Bengal and Madras provinces. In the mouffisils of the Bombay Presidency, the Muslim law of crimes was not the general law and was not as well entrenched as it had been in the moufissils of Bengal or Madras. The reason for this was that the large tract of territories which came to constitute the Bombay Province had never been under the Muslim Rule. Therefore, the British Administrators, instead of enforcing the Muslim law of crimes uniformly to all as the general law of the land, adopted the expedient of administering personal law of crimes. The scheme was laid down in section 36 of Regulation V of 1799. In course of time, the frontiers of the Bombay Province expanded considerably with the annexation of the Maratha territory. Mountstuart Elphinstone, the Governor of Bombay and a great admirer of Bentham, was convinced of the need for a better and more uniform system of law, civil and criminal, throughout the extensive Province of Bombay. Accordingly in 1827, his government enacted a series of Regulations which came to be known as the Elphinestone Code. Regulation XIV in the code contained the criminal law to be applied in the company's courts in the mofussil of the Bombay Presidency. The Regulation claimed that it was an expression of the general result of the practice of the courts and was designed to secure the more steady observance of the principle of administering to individuals the law of their religion while at the same time also providing a code ease of access for those individuals of the community to whom, as not being subject to any specific national or religious code of criminal law, the English law has with considerable inconvenience been hitherto applied. The Regulation had only 41 sections and defined and classified the acts and omissions which constituted punishable offences along with the scale of punishment for each offence. It applied to everyone who was not a British subject. The fact remains that the Regulation was neither logical, nor analytical, nor systematic. Many important classes of offences were altogether unnoticed by the regulation. This omission was sought to be made good by one sweeping provision in S7 which provided that in addition to the crimes specified in the Regulation, offences declared by the religious laws of the person charged which constituted a breach of morality ,or the peace ,or good order of society, should be liable to such punishments as was provided by the personal law if it was one of the forms of punishment recognised by the code ;and if not., should be visited with an equivalent and appropriate punishment of a recognised kind. The only merit of the Regulation was that it was the First Attempt to Codify and digest Criminal law in India.

A note: the effect of English Law in India In spite of all the efforts by the British authorities to improve the legal system, the instability between the colonial public and the native private was clearly exposed during the long-running debates about uniform criminal procedure. For instance, both locals and Britons in India maintaining their right to exemption from the jurisdiction of the local courts as a matter of personal law as well as various claims about Indian otherness in the purportedly universal realm of public law illustrate the attitude of the people on the Criminal Legal system. The government's repeated efforts to appease the non-official community by securing inequality under the law indicate that a rule of law, initially conceived of as a tool to control the influx of unwieldy elements of British society in India, became increasingly connected to the political stability and economic prosperity of the empire, and not to the abstract principles of equality and uniformity. The Modern Criminal System The most important criminal laws used in India today are the Indian Penal Code, The Criminal Procedure Code and the Indian Evidence Act. Other laws used for various other purposes are passes from time to time The Indian Penal Code contains 511 sections covering various aspects of criminal law including specific crimes like dowry. The Criminal Procedure Code passed in 1973 contains 484 sections and defines the legal process for adjudicating claims of violation of criminal law. The Indian Evidence Act of 1872 which originally contained 167 sections contains rules and allied issues governing admissibility of any evidence in the courts of law. Codified laws like this build a firm foundation and help in the administration of good criminal justice.

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