This article discusses the evolution Of Law Of Crime over the years. he contemporary criminal law framework of India resembles the British framework to a large extent, nevertheless, amendments have been made with the changing socio-economic times.
Law is an established set of guidelines implemented by Govt in order for the individuals to ensure public order and peace and secure the equity and respectability amongst the citizens. Law as a set of guidelines can be categorised into substantive and procedural law depending upon its reason and tendency. Substantive law provides for the rights, liabilities, commitments and obligations of a person and the procedural law lays down the procedure to be adhered to execute the provisions enumerated in substantive law.
The existence of judicial organisations cannot be traced to the Vedic period and predominantly in India, the elders acted as judges and punishment were imposed in accordance to the nature of the offence committed, in compliance to the local customs and usages. Moreover, the administration of justice has always remained centralised in India and independent from the executive.
The Quran, Hadis and Ijma were the major sources of the Islamic law that the Sultans implemented on the people for governance. However, the Muslim administration of justice and adjudication in medieval India was encountered a lot of defects due to the absence of separation between the judiciary and executive. With the arrival of Britishers, the arrangement of law again changed as they introduced common and criminal courts.
The major proponents of the change are Warren Hasting and Cornwallis. The former was the one who by virtue of the Regulating Act, 1773 established the Supreme Court of Calcutta and endeavoured to encapsulate the Hindu and Muslim law into a book called, “A Code of Gentoo Law” authored by Cole Brook and William Jones.
The contemporary criminal law framework of India resembles the British framework to a large extent, nevertheless, amendments have been made with the changing socio-economic times.
Judiciary in Ancient India
Since the social and state information was not yet complete during the Vedic Period, Dharma was the primary source of law and the four major legs of law are:
- Dharma (Sacred Law)
- Vyavahara (Evidence)
- History (Charitra)
- Edicts of Kings (Rajasasana)
It was the Hindu criminal law which governed India before the conquest by the Muslims and ancient India saw a well organized and systematic form of criminal law. Ancient Smriti writers like Manu, Yajnavalka and Brihaspati had avid knowledge regarding the purpose of punishments to the criminals. According to them, there are four methods of punishing a person:
- Gentle reprimand
- Severe re-proof
- Corporeal punishment
Also, the punishments mentioned may be awarded separately or combinedly, depending upon the nature of the offence. The writers also mentioned the purposes which are met by awarding such punishments which have been enumerated hereunder:
- For deterrence
- For prevention
- For reformation
- To do justice to the people who suffered
The criminal law and civil law systems of India date back to 3000 B.C.E to 1001 C.E, when the Indian subcontinent was ruled by various kings. The fact that the same system of law was prevalent for 4000 years is remarkable for a nation. The commonly used term for the law was either Neethi or Dharma which were propounded by the great writer Manu.
The Dharamsutras and Kautilya’s Arthashastra, have a more elaborative and well defined criminal law system. The Niti Shastra calls the king as the “fountain of justice”, who has been entrusted with the sacred duty to serve justice by punishing the wrong-doers and hence if he remained ineffective in ensuring justice he is bound to end up in hell.
In early society since there absence of a proper state for administration of justice, the victim could himself punish the wrongdoer through retaliatory methods and this was naturally effected by personal passion and chance. There have been several mentions in the Rig Veda also, that the person who has been wronged must take actions against a thief by awarding him punishment.
However, living as a group or in society made the formulation of rules of behaviour necessary to be adhered to by its members as they defined the appropriate behaviour of every individual. This came to be known as Dharma or law.
This Indian system of law has been criticised by Henry Maine, an Anglo-Indian jurist who called the system prevalent in Ancient India as an “apparatus of cruel absurdities” and said termed it as “the oriental habits of life” of Indians before the British arrived in India. Hereunder is an excerpt of his criticism:
“It (British rule in India) is a record of experiments made by foreign rulers to govern alien races in a strange land, to adapt European institutions to Oriental habits of life, and to make definite laws supreme amongst peoples who had always associated government with arbitrary and uncontrolled authority.”
Additionally, Alan Gledhill, who was a retired Indian Civil Servant, wrote that before the annexation of power by the British in India, “there was a dearth of legal principles.”
Criminal Law System in the Mughal Period
The Mughal era saw the administration of justice and governance to be followed in accordance with the Muslim law which was made effective throughout the lands they had conquested. The Muslim law was well entrenched in certain states of India like Bengal, Orissa and Bengal even when the East India Company began its administration in these states.
Although the law was filled with flaws as the majority of the principles were not in consonance with the British notion of common sense, good governance and justice. So eventually, the legal system was modified by the British who amended the Muslim Legal system entirely exercising their power to make regulations. However, they did not do away with the Muslim Legal system in its entirety and adapted parts of it as was required to fulfil the needs of the society in Bengal.
It can be said that the application of Muslim Law was prevalent in the mofussil of Bengal, Orissa and Bihar for 100 years even after the entrance of the company which had begun their governance. Although, largely due to heavy modifications which the Muslim law underwent and the enactment of Indian Penal Code 1860, it could no more be characterised as Muslim law and was transformed into an anglo-Muslim law of crimes.
Salient features of Muslim Criminal Law System
Hereunder are the three classifications of the Muslim criminal law system:
- Crime against god: This class of crime included consuming intoxicants, adultery, apostasy, etc.
- Crime against sovereign
- Crime against a private individual, Like robbery with murder, theft, highway robbery, etc.
The punishments for the above-mentioned crimes were accordingly categorised as:
- Hadd: The word means boundary or limits. In criminal law, the term ‘hadd’ meant specific punishment for specific offences. The objective was to define, prescribe and fix the nature, quality and quantity of punishments for some particular offences which the society considered anti-religious or anti-social. These were the offences which were held accountable as offences against the god or against the ‘public justice’.
- Tazeer: These were the discretionary punishments. Such punishments were awarded only on the exercise of discretion of the judges owing to the absence of a law for the particular offence. Primarily these punishments included corporeal punishments, imprisonment, boxing on the ear, etc. The main purpose behind Tazeer was to meet the end of public and private justice.
Defects of Muslim Law
In medieval India, the Muslim criminal law system experienced a lot of setbacks due to absence of separation between the executive and the judiciary. There were a lot of areas the Muslim Law was either not certain or not uniform in its practice.
The Muslim jurist differed in their comments and opinions which provided freedom of interpretation of the law to the Qazi. So the interpretation of the law is subjective to the Qazi was applied to the cases on the free will of the Qazi leading to arbitrariness. For instance, in a lot of cases, the murdered was absolved of his crime simply by providing monetary compensation to the family of the victim. Even the law of evidence under the Muslim law was stricken with flaws and was primitive in nature as it did not contemplate of capital punishment to any Muslim even when evidence of his infidelity was found.
Changes in Criminal Law
Warren Hastings presented his judicial plan for the administration of justice in the territories of Bengal and Orissa. In 1773, he proposed that certain modifications be brought about in the Muslim criminal law and further suggested abolition of privileges reposed on the son or the nearest kin for absolving a murderer of their parents.
In his words, such a law was a law of Barbarus construction and contrary to the principles of civil society. Despite his unwavering endeavour and advocacy to bring amendments, the matter did not proceed and did not find a conclusion for the rest of his tenure as the Governor-General of India.
It was finally that the changes to Muslim law were initiated in 1790 by Lord Cornwallis. He divested the Nizam of any control or power over the Nizamat. He did away with the Muslim law created by Abu Hanifa which unreasonably did not account a murderer liable for punishment if the death was committed by drowning, poisoning, strangling or by application of a weapon made out of iron.
The rule that kin of a deceased may remit the sentence of a wrongdoer was also abrogated. In 1791, the punishments of mutilation were substituted with punishments like hard labour and imprisonment. Furthermore, the provision under Muslim law which did not allow a Hindu to provide testimony or adduce evidence against a Muslim was also removed.
The provisions of the law on homicide was ambiguous until 1797 when through a regulation it was restated that the application of will of heirs to be abolished. The law pertinent to murder was modified and it was laid down that the murderer to be punished without taking into account the considerations of the heirs of the deceased.
Another new development was the substitution of the punishment imprisonment instead of blood money. In cases wherein under the Muslim law, a person guilty of homicide was liable to pay blood money, was now awarded by the circuit courts imprisonment and fine for such period as they found necessary for the offence committed.
Lord Wellesly introduced a number of modifications to the criminal law system in 1799. Regulation of 1799 laid down the provision that murder was no more justifiable and all the murderers to be subjected to capital punishment irrespective of the circumstances. Regulation 18 of 1801 provided that a person who intentionally and maliciously intends to kill an individual, however accidentally ends up killing another have to be subjected to suffer death.
Regulation 16 of 1802, further provided that the criminal and inhuman tradition of child sacrifice be abolished and also held infanticide punishable with death as much equivalent as wilful murder.
In 1807 the offences of perjury and forgery were made punishable with greater punishments by virtue of Regulation II and exemplary punishments were introduced to deter the offence of dacoity under Regulation VIII of 1808 considering an enormous rise in dacoity. Law pertinent to adultery was also modified and the requirement of 4 competent male witnesses was mandated as presumptive proof was not adequate to hold someone guilty of adultery.
Furthermore, a conviction for the offence of adultery could be established by relying on credible testimonies, circumstantial evidence and confessions. The offence if made out was to be awarded a punishment of 39 strips and imprisonment with hard labour for a period of 17 years. Nevertheless, a married woman could not be held guilty of the offence of adultery.
Codification of Laws
An All India Legislature was set up which through reforms and modifications finally resulted in the enactment of Indian Penal Code 1860. Even during the period of 1833-1860, reforms were enacted to the criminal law which included the punishment to the thugs with life imprisonment and hard labour, slavery was abolished and dacoits were punishable with transportation for life or any other punishment for a shorter period and hard labour.
It is worthwhile to note that even the punishments awarded to the British administrators were harsh in the initial years in order to suppress crime. With the passage of time, the rigour of punishments was mitigated and made liberal on account of the stability in society and as criminal incidents reduced.
Finally, in the year of 1833 the ‘Indian Law Commission’ was formed by the Govt of Britain to analyse the rules, powers and jurisdictions of the existing courts and thereby prepare a report and present suggestions for reform. During the period of 1834-1879, the commission extensively worked on the Anglo-Indian codes and formulated the remarkable piece of statute i.e. the Indian Penal Code, 1860.
The first draft of the same was submitted by Lord Macaulay in the year 1837 which was eventually passed in 1860. Another great contribution was the formulation and codification of the Code of Criminal Procedure, 1861.
The code ensured the legal supremacy of “European born British subject” by retaining for them special privileges like the right to jury trials with the majority of the jury representing the European jurors, limited punishments, proceeding only by British judges and magistrates. All of this was done to maintain and display the European superiority and prestige. Thomas, a legislative council member remarked that:
“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, 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.”
 Preamble to Regulation 53 of 1803
 Letter to Bengal Government, 12 April 1772