A Legal History Project on
The Development 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 couldn’t 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
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The Muslim Legal Legal System in India
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The Fallacies Fallacies of the Muslim Legal Legal System
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The Emergence of the English Laws Laws
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Reforms in the Criminal Administration by the British
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Important Reforms before the Codification of Criminal Laws
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The codification codification of Criminal Criminal laws in India Post Codification and the and its effect on the general population
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The Modern Criminal Criminal Legal System System
Introduction
The development of both Criminal and civil Legal systems in india date back back to the ancien ancientt period period to a land land that that was ruled ruled by various various kings of India right from 3000 B.C.E to 1001 C.E and beyond. This country had a simila similarr system system of law for well well over over 4000 4000 years. years. No other other country 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 11th 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:
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Crimes against God
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Crimes against Sovereign
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Crimes against individual
Crim Crimes es of agai agains nstt God God are are gene genera rall lly y thos those e crim crimes es that that are are stri strict ctly ly prohibited in the Quran and they include apostasy, drinking intoxicants, adultery. Crim Crimes es agai agains nstt the the sove sovere reig ign n are are crim crimes es whic which h are are view viewed ed with with less 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 indivi individua duals. ls. They They are sp speci ecific ficall ally y those those crime crimes s commi committe tted d agains againstt 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.
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Kisa or Retaliation
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Diya or Blood Money
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Hadd or limits
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Tazeer or Discretionary Discretionary Punishments Punishments
These Muslim laws and the prescribed punishments were applied and admi admini nist ster ered ed by lear learne ned d men men call called ed Qazi Qazi’s ’s in acco accord rdan ance ce with with the 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, thes these e puni punish shme ment nts s coul couldn dn’t ’t chan change ged d or vari varied ed and and they they had 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 didn’t 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 convic convicted ted if he made a confess confession ion in front front of the quazi. quazi. Thus 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 couldn’t 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 illogicality’s 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 fact that that more more empha emphasi sis s was was give given n to crimes crimes recogn recognis ised ed as being being ‘against god’ and less attention was given on crimes which in reality were more more seve severe re (lik (like e maim maimin ing g and and murd murder er)) is a glar glarin ing g exam exampl ple e of the the defi defici cien enci cies es of the the Musl Muslim im crim crimin inal al sy syst stem em.. Also Also,, as the the laws laws were admi admini nist ster ered ed by Qazi Qazi’s ’s,, ther there e alwa always ys exis existe ted d a cert certai ain n doub doubtt 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. Qazi’s could by coerced coerced or corrupted corrupted to misapply misapply the law. law. Another Another defect 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 soci societ ety y as the the law law was was defi defici cien entt and and inad inadeq equa uate te.. It cont contai aine ned d many many loopholes through which many serious criminals could have their way. These glaring defects were recognised and over time 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 appear appearing ing in the judici judicial al system system and more more impor importan tantly tly in the crimin criminal al administration of justice. However until the late 1850 have there were very very few few su subs bsta tant ntiv ive e refo reform rms s in this this sect sector or.. Refo Reform rms s in the the crim crimin inal al sectors took place in 1772, 1790-93, 1797 and 1799-1803.
Reforms of 1772 These reforms were were launched by Warren Hastings 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 daco dacoit its s and and intr introd oduc uced ed seve severe re puni punish shme ment nts s to weed weed them them out. out. The 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 they were were caus causin ing. g. Ap Apar artt from from this this,, Warr Warren en Hast Hastin ings gs form formul ulat ated ed 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 17 90.. As obse observ rved ed earl earlie ierr ther there e exis existe ted d many many glar glarin ing g defe defect cts s in the 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 government under Lord Cornwallis Cornwallis divested the Nazim of any any auth author orit ity y over over the the Niza Nizama mat. t. He abro abroga gate ted d cruc crucia iall Musl Muslim im laws laws formulated by Abu Hanifa that illogically maintained that a murdered was not not liab liable le for for puni punish shme ment nt if the the crim crime e was was comm commit itte ted d by stra strang ngli ling ng,, drowning, poisoning, or with a weapon which was not made of iron. It was also declared that the kin of the deceased didn’t have any right to remit the sentences of the offender. The government in 1791 also abolished the puni punish shme ment nt of muti mutila lati tion on and and impr impris ison onme ment nt and and hard hard labo labour ur were 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 the Ad Adal alat at wher where e they they disa disapp ppro rove ved d the the fatw fatwa a of the the law law offi office cers rs.. 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 incompetent,, the court was to forward forward this case to the Sadar Diwani Adalat which in turn after looking at the facts of the case would would pronou pronounce nce the judgem judgement ent.. The govern governme ment nt also also decide decided d that 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 law was was expl explai aine ned d and and rest restat ated ed in 17 1797 97 thro throug ugh h regu regula lati tion on IV. IV. The 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, •
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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 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 refer the proce proceedi edings ngs to the sadder sadder divan divan Ad Adala alat. t. Anothe Anotherr innova innovatio tion n made made at the the time time was was to su subs bsti titu tute te impr impris ison onme ment nt for for bloo blood d mone money y (Diya (Diya).I ).In n cases cases where where under under the Muslim Muslim lawman lawman person person convic convicted ted of homi homici cide de was was liab liable le to pay pay bloo blood d mone money, y, the the cour courtt of circ circui uitt was was to comm commut ute e the the fine fine to impr impris ison onme ment nt for for su such ch peri period od as it cons consid ider ered ed adequate for the offence. A sentence for life imprisonment had to be referred to the Sadar Nizamat Adalat. Furt Furthe her, r, it was was laid laid down down that that in any any case case not not prov provid ided ed for for by the 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 mitiga mitigatio tion n of the punish punishmen ment, t, to the govern governor or-gen -genera eral-i l-in n -counc -council. il. The cour courtt was was also also to prop propos ose e a new new Regu Regula lati tion on to prov provid ide e agai agains nstt 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 thr through ough Regu egulati latio on VIII III of 18 1808 08 as thes hese crim crimes es had incr increa ease sed d enormou enormously. sly. By Regulatio Regulation n XVII of 1817, 1817, the law relating relating to adultery 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 adul adulte tery ry coul could d be base based d on conf confes essi sion ons, s, cred credit itab able le test testim imon ony y 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 instances inconsistent inconsistent with the end of public public justice”. justice”. Accordingly Accordingly,, it was laid laid down down that that if the the Isla Islami mic c law law decl declar ared ed the the evid eviden ence ce of a witn witnes ess s inadmissible on grounds which appeared to the judge “unreasonable and insufficient”, this was no longer to be followed: the evidence had to be take taken n and and the the Musl Muslim im law law offi office ces s had had to give give thei theirr “fat “fatwa wa” ” on the 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 being refor reformed med extens extensive ively. ly. It was incumb incumbent ent on the Gover Governm nment ent to reform the traditional law with a view to secure an effective
administration of criminal justice in the interest of protecting life, liberty and proper property ty of the people people and for avoidi avoiding ng manif manifold old inequa inequalit lities ies and injustices which resulted from the strict administration of the traditional law. law. In the the init initia iall stag stages es ther there e was was relu reluct ctan ance ce amon amongs gstt the the Brit Britis ish h administrators to interfere with the established law, but this complex was shed under the leadership of Cornwallis who was convinced that there was no alte altern rnat ativ ive e befo before re the the gove govern rnm ment ent but but to unde undert rtak ake e exte extens nsiv ive e 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 fatwa’s 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 fatwa’s 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 Adalat if he dis disagr agreed eed with with the fatwa fatwa propos proposed. ed. Under Under this this statut statutor ory y 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 law offi office cers rs was was take taken n in 18 1810 10 when when Regu Regula lati tion on I made ade prov provis isio ions ns 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 which arose arose in Banara Banaras s in Decem December ber 1809.T 1809.Ther here e arose arose some some tensio tension n 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 fatwa’s according to Muslim law. Accordingly, the regulation was made enabling the Court of Circuits “to dispense with the fatwa of their law officers”. In 18 1817 17,, the the Sada Sadarr Niza Nizama matt Ad Adal alat at was was give given n powe powerr to conv convic ictt and and sentence sentence an accused accused acquitted by its law officers, officers, and in 1822, the court got got the the powe powerr to acqu acquit it an accu accuse sed d notw notwit iths hsta tand ndin ing g the the fatw fatwa a 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 exce except ptio ion n from from the the same same.. Regu Regula lati tion on VI of 18 1832 32 made made a numb number er 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 becam became e option optional al for the crimin criminal al courts courts to seek seek fatwa’ fatwa’s s from 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 were active active debate debates s and confli conflicts cts around around how codifica codificatio tion n fit in with with broader colonial priorities and practices. After 1833, an All India Legislature was created and through subsequent reforms reforms through through the years led to the enactment enactment of the Indian Penal code in 1860. During the period from 1833-1860, changes were made in the crim crimin inal al law law and and the the impo import rtan antt ones ones incl includ uded ed that that thug thugs s came 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 order situation situation improved, improved, and incidence incidence of crime crime lessened, lessened, liberalising liberalising tend tenden enci cies es set set in and and the the rigo rigour urs s of puni punish shme ment nt were were som somewha ewhatt 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 Code of 18 1860 60 toda today y and and the the cred credit it for for maki making ng this this poss possib ible le goes goes to Thomas Babington 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 inqu inquir irie ies s and and su sugg gges esti ting ng refo reform rms. s. The The law law comm commis issi sion on work worked ed 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. Give Given n that that the the Roya Royall Comm Commis issi sion on was was simu simult ltan aneo eous usly ly work workin ing g on a crimin criminal al code code for England, England, it is not su surpr rprisi ising ng that that Macaul Macaulay ay first 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. Anothe Anot herr impo import rtan antt law law that that was was codi codifi fied ed was was the the code code of crim crimin inal al proc proced edur ure. e. When When it was was firs firstt pass passed ed in 18 1861 61,, the the Code Code of Crim Crimin inal al Proc Proced edur ure e fier fierce cely ly guar guarde ded d "pri "privi vile lege ges" s" or "rig "right hts" s" as they they were 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 major majority ity of Europe European an juror jurors, s, amena amenabil bility ity only only to Briti British sh judges judges and magist magistrat rates, es, and limite limited d punish punishmen ments, ts, all this this while while maint maintain aining ing 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 the admi admini nist stra rati tion on of just justic ice e as whol whole. e. The The pres presid iden ency cy town towns s of Calcutta, Bombay, and Madras along with the various provinces saw a grad gradua uall chan change ge in the the admi admini nist stra rati tion on of just justic ice e and and this this chan change ge is a signif sig nifica icant nt observ observati ation on in the histor history y of Briti British sh rule rule in India. India. Empha Emphasis sis must be given on the individual individual regions and how laws were developed 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 17 90.T .The hese se defe defect cts s were were rem removed oved by legi legisl slat atio ion n whic which h foll follow owed ed 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 “Taz “Tazee eer” r” and and also also for for vari variou ous s type types s of robb robber erie ies, s, espe especi cial ally ly thos those e committed with open violence attended with murder or other physical injuries .Regulation VI of 1811 provided for more effectual punishments of perjur perjury y and forger forgery. y. Under Under the Musli Muslim m Law, Law, perjur perjury y and forger forgery y were were punishable in the discretion of the judge, by flagellation, imprisonment and and publ public ic igno ignomi miny ny.. The The pers person ons s conv convic icte ted d of thes these e offe offenc nces es were were comm commit itte ted d to vari variou ous s but but inad inadeq equa uate te puni punish shme ment nts s .To .To defi define nes s the 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 prov provis isio ions ns for for the the more more exem exempl plar ary y puni punish shme ment nt of robb robber ery y by open 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 guil guilty ty were ere to be subje ubject ct.. To main aintain tain the the jus just auth autho ority ity of the government, Regulation I of 1834 prescribed the penalty of death for such offe offenc nces es.. By act act I of 18 1840 40,, The The Fodd Fodder er Ad Adal alat at was was reli reliev eved ed from from the 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 gene genera rall law law and and was not not as well well entr entren ench ched ed as it had had been been in the 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 down in section 36 of Regulation Regulation V of 1799. In cour course se of tim time, the the fron fronti tier ers s of the the Bom Bombay bay Prov Provin ince ce expa expand nded ed 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, civi civill and and crim crimin inal al,, thro throug ugho hout ut the the exte extens nsiv ive e Prov Provin ince ce of Bom Bombay. bay. Accor Accordin dingly gly in 1827, 1827, his govern governme ment nt enacte enacted d a series series of Regula Regulatio tions ns which came to be known as the Elphinestone Code. Regulation XIV in the code contained contained the criminal criminal law to be applied applied in the company's 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 commu communit nity y to whom, whom, as not being su subje bject ct to any specific specific nation national al or religi religious ous code code of crimin criminal al law, law, the Englis English h law has with with consid considera erable ble inconvenience been hitherto applied. The Regulation had only 41 sections and define defined d and classi classifie fied d the acts acts and omiss omission ions s which which consti constitut tuted ed 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 sy syste stema matic tic.. Many Many import important ant class classes es of offenc offences es were were altoge altogethe therr 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 person charge charged d which which consti constitut tuted ed a breach breach of moral morality ity ,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 was clea clearl rly y expo expose sed d duri during ng the the long long-r -run unni ning ng deba debate tes s abou aboutt unif unifor orm m crim crimin inal al proc proced edur ure. e. For For inst instan ance ce,, both both loca locals ls and and Brit Briton ons s in Indi India a mainta maintaini ining ng their their right right to exemp exemptio tion n from from the jurisd jurisdict iction ion of the local 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 repe repeat ated ed effo effort rts s to appe appeas ase e the the nonnon-of offi ficia ciall comm commun unit ity y by secu securi ring ng inequality under 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 Indi India, a, beca became me incr increa easi sing ngly ly conn connec ecte ted d to the the poli politi tica call stab stabil ilit ity y and 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.