Growth of criminal law in India

Mahima Gherani, Student of Law, VIT Law School, Chennai

The present criminal system of India was not a sudden creation. It has been evolved as the result of slow and gradual process and bears the imprint of the different period of Indian history.

In this article, we can understand how criminal law developed over years in India in a systematic format starting from the Ancient Hindu Criminal Law and then proceeding with the Early Muslim Criminal Law, Reforms by English Administrators, Fall of Muslim Law, The First Indian Law Commission, The Indian Penal Code and finally The Criminal Procedure Code which was repealed many times to draft an efficient statute that could regulate the criminal system of law in India.

Before the Muslim law developed in India, the penal law prevailing in India was the Hindu Criminal Law, which was systematic and well defined. Ancient Smriti writers propounded four methods of punishment, namely, by gentle admonition, by severe reproof, by fine and by corporal punishment and declare declared that these punishments shall be inflicted separately according to the nature of the offence. These punishments serve four main purposes namely, to meet the urge of the person affected, for revenge or retaliation, as deterrent and preventive measures and for reformation or redemption of the evil doer1. Certain classes of people were exempted from punishment under the ancient criminal law. The next phase saw the rise in Mohammedan Criminal Law over time, which influenced and brought about measures that formed the base of criminal system in India. The Mohammedan Criminal Law was based on the Koran, which is believed to be of divine origin and was the first source of Muslim Law. Consequently, the rules of conduct (called Sunna) were deduced from the oral precepts, actions and decisions of the Prophet, which formed the secondary source. Concurrence of the companions of Mohammed and the aid of analogy constituted respectively the third and fourth source of Muslim Law2. Hidaya (laid down general principals) and Fatawa-i-Alamgiri (collection of case laws) expounded criminal law. Under Mohammedan law offences were generally classified into four main categories:

  1. Qisas or Retaliation: This applied to offences against a person, e.g wilful killing, grave injury etc.
  2. Diya: In certain cases, where retaliation wasn’t allowed, the injured party had the right to demand for blood money which was called as diya.
  3. Hadd: In cases of had, the law prescribed and fixed penalties for certain offences. Punishments under had were given in offences like zina(illicit intercourse), drinking wine, theft, highway robbery etc.
  4. Tazir: Tazir meant discretionary punishment. The conditions in conviction in tazir, were not so strict as for cases under hadd.

Though certain broad principals of Mohammedan Criminal Law were laid down, they were not certain and uniform in actual practise as they were conflicting, confusing and incompatible.  The inherit defect was in its conception and classification of crimes into three categories namely crimes against God, against the state and against under private individuals. There was no distinction between public and private law. The weakness of Mohammedan law was sufficient to encourage many persons to commit murders. The law of diya or blood money was highly unsatisfactory. There was no distinction between a tort and a crime and between a murder and homicide. The Mohammedan law as stated above, suffered from many defects, seeing which the English administrators introduced reforms from time to time to mould, refrain and amend the Muslim Law. Warren Hastings boldly criticised this law and attempted to introduce reforms in various forms. To regulate the machinery of justice in Bengal, Warren Hastings prepared plans and introduced reforms in 1772, 1774 and 17803. Lord Cornwallis reforms were introduced on 3rd December 1790, which included changes in many ways that improved the criminal law system. He introduced the importance of intension in committing a crime, instead of the weapon with which the crime was committed4. Not only this, the decisions that were decided by the Government had to be codified and published in Indian languages5. The process of introducing reforms in Mohammedan Criminal Law continued till 1832, when the law was totally abolished. Regulation VI of 1832 played a very important role in shaping the future course of criminal law in India. It empowered the judges of Nizamat Adalat to overrule fatwas and also provided that non Muslims who were under trial could demand that they did not want to be tried according to the Mohammedan Law of crimes. On the whole, the ultimate authority to decide cases was exclusively given to the presiding officer. After 1832, the jury system, as it prevailed in England, was introduced in India. This system was highly criticised as a failure, as the judge was partial and appointed only those who agreed with him. In order to tackle the existing defective state of legislation, the British Parliament passes the Charter Act, 1833. A major improvement was that the Governor General of Bengal was made the Governor General for India, who had the power to legislate the whole of British India. The powers of presidencies of Bombay and Madras to legislate were abolished. The Act also provided for the appointment of a Fourth Member, as a Law Member to the council of Governor General. In 1934, the 1st Law Commission of India was framed under the leadership of Lord Macauley, which took up the responsibility to prepare a Penal Code for India. The work of the Penal Code took over 2 years and the final report was submitted on 31st December 1837, though it was not immediately accepted by the government but was regarded as the most significant and historic contribution of the Commission. Civil servants questioned “the wisdom of enacting a law which declined to draw exclusively upon any one system of law, choosing instead either to borrow from several , or to rely on abstract theories of jurisprudence”. Such objections, coupled with the resignation of Macaulay in 1838 and other new appointments in the Indian administration, account for the delay in the code’s adoption. Moreover, subsequent administrations sought and sometimes effected their own modifications to the Code. For not less than 22 years, the Code remained in the shape of a draft and underwent minutely careful and elaborate revision by the members of the Legislative Council. Finally, the Indian Penal Code was passed into law on 6 October 1860 as an Act of XLV of 1860 and was translated into almost all the written languages of India. The Penal Code went through subsequent changes by Whitley Strokes. The case law material on the provisions and commentaries of the Penal code was multiplied. The Constitution guaranteed fundamental rights and directive principals of State to the citizens. There was also rapid growth in the automobile industry which changed the economic and political outlook of the people. It is important to note that from 1860 to 1980, the Indian Penal Code was amended somehow 58 times. With the advancements in developments in Indian conditions, it became essential to create separate and fresh provisions in the Penal Code. Sentences of transportation, imprisonment, fine, inequality in punishment, degree of crime, abolition or retention of capital punishment etc were matters involving major decisions and careful consideration by experts.

Courts of law try cases under procedures that resemble the Anglo-American pattern. The machinery for prevention and punishment through the criminal court system rests on the Code of Criminal Procedure of 1973, which came into force on April 1st, 1974, replacing a code dating from 1898.The code includes provisions to expedite the judicial process, increase efficiency, prevent abuses, and provide legal relief to the poor. The basic framework of the criminal justice system, however, was left unchanged. Besides the Indian Penal Code, 1860 many other statutes have been enacted to control various kinds of other crimes, notably white collar crimes, crimes against women and children, economic offences and against national integrity, against terrorism and cyber crimes.

Presently, Constitutional guarantees protect the accused, as do various provisions embodied in the 1973 code. Treatment of those arrested under special security legislation can depart from these norms, however. In addition, for all practical purposes, the implementation of these norms varies widely based on the class and social background of the accused. In most cases, police officers have to secure a warrant from a magistrate before instituting searches and seizing evidence. Individuals taken into custody have to be advised of the charges brought against them, have the right to seek counsel, and have to appear before a magistrate within twenty-four hours of arrest. The magistrate has the option to release the accused on bail. During trial a defendant is protected against self-incrimination, and only confessions given before a magistrate are legally valid. Criminal cases usually take place in open trial, although in limited circumstances closed trials occur. Procedures exist for appeal to higher courts.

India has an integrated and relatively independent court system. At the apex is the Supreme Court, which has original, appellate, and advisory jurisdiction (see The Judiciary, ch. 8). Below it are eighteen high courts that preside over the states and union territories. The high courts have supervisory authority over all subordinate courts within their jurisdictions. In general, these include several district courts headed by district magistrates, who in turn have several subordinate magistrates under their supervision. The Code of Criminal Procedure established three sets of magistrates for the subordinate criminal courts. The first consists of executive magistrates, whose duties include issuing warrants, advising the police, and determining proper procedures to deal with public violence. The second consists of judicial magistrates, who are essentially trial judges.  Third, petty criminal cases are sometimes settled in panchayat.

This is how, over time immemorial criminal law developed through various phases, each of it having some impact in one way or the other.

  1. P.V.Kane, History of Dharmashastra, Vol III, 388-390 []
  2. Fitzgerald, Mohammedan Law, 3-8 []
  3. “Judicial Reforms of Warren Hasting” Chap. IV []
  4. Cornwallis in Bengal,69; Rankin, Background to Indian Law,170 []
  5. Regulations XLI of 1793 []

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