Theoretical overview
Development of personal law
Personal law is defined as a law that applies to a certain class or group of people or a particular person, based on the religions, faith, and culture. In India, everyone belongs to different caste, religion and have their own faith and belief. Their belief is decided by the sets of laws. And these laws are made by considering different customs followed by that religion. Indians are following these laws since the colonial period. In this chapter, we will learn about the personal laws of Hindu and Muslims.
Hindu Personal Laws
Hindus personal laws can be found in:
• The ‘Shruti’ which contains all the four Vedas, namely Rig Veda, Sama Veda, Yajurva Veda, and Atharva Veda.
• The ‘Smritis’ which are handed down teachings and sayings of Rishis and holy men of Hindu religion and the commentaries written by many historic authors about the ‘Smritis’. There are three types of Smritis, namely: Codes of Manu, Yajnavalkya, and Narada.
Personal Laws and customs as recognised by the statutory law regulate the
Hindus. These are applicable to legal issues related to matters of inheritance, succession, marriage, adoption, co-parenting, the partition of family property, obligations of sons to pay their father’s debts, guardianship, maintenance and religious and charitable donations.
Development of criminal law
What is common law? The expression ‘Common Law of England’ refers to those
Unwritten legal doctrine embodying English custom and English ‘traditions, which have been
Developed over the centuries by the English courts. So understood It would not Include and
Would be different from the English statutes Law, which has from time to time modified the
Common law. But the English brought into India not only the mass of legal rules strictly
Known as the common law, but also their traditions, outlook and techniques In establishing.
Maintaining and developing the judicial system.
The history of present day Indo-British Jurisprudence commences with he formation of the
London East India Company In 1600 in the reign of Queen Elizabeth I. The Charters of
Queen Elizabeth granted to the Company In the years 1600 and 1609 gave the power to them
to make and constitute such and so many reasonable laws, constitution, orders and ordinances
as to them so seems necessary .The position of the Company’s factories In India was at that
time some what anomalous. They were generally a part of the dominion of the Mughal. Yet
since the very early days, the Company had obtained the authority of the British Crown to
administer justice and constitute judicial authorities fn the areas covered by these factories, In
order that they might be able to administer justice according to their own notions and in
accordance wIth the laws which they were familiar, the Company had endeavoured to obtain
permission to administer their own laws in these areas.
In 1661 the Charter of Charles II gave to the Government and Council of several
places belonging to the Company the power to judge all persons belonging to the said
Government and Company according to the laws of this kingdom and to execute judgment
accordingly.
Almost contemporaneously with this Charter came the Cession of the Island of
Bombay by the Portuguese to the English and Its lease by Charles II to the East India
Company In 1668, Prior to that this was the territory which had been under Portuguese rules
and Portuguese law governed It.
The Charter of Charles II transferring the Island of Bombay to the Company, required
the Company to enact laws “consonant to reason and not repugnant or contrary to” and “as
near as may be agreeable to” the English laws. The charter also directed that the courts an
What is common law? The expression ‘Common Law of England’ refers to those
Unwritten legal doctrine embodying English custom and English ‘traditions, which have been
Developed over the centuries by the English courts. So understood It would not Include and
Would be different from the English statutes Law, which has from time to time modified the
Common law. But the English brought into India not only the mass of legal rules strictly
Known as the common law, but also their traditions, outlook and techniques In establishing.
Maintaining and developing the judicial system.
The history of present day Indo-British Jurisprudence commences with he formation of the
London East India Company In 1600 in the reign of Queen Elizabeth I. The Charters of
Queen Elizabeth granted to the Company In the years 1600 and 1609 gave the power to them
to make and constitute such and so many reasonable laws, constitution, orders and ordinances
as to them so seems necessary .The position of the Company’s factories In India was at that
time some what anomalous. They were generally a part of the dominion of the Mughal. Yet
since the very early days, the Company had obtained the authority of the British Crown to
administer justice and constitute judicial authorities fn the areas covered by these factories, In
order that they might be able to administer justice according to their own notions and in
accordance wIth the laws which they were familiar, the Company had endeavoured to obtain
permission to administer their own laws in these areas.
In 1661 the Charter of Charles II gave to the Government and Council of several
places belonging to the Company the power to judge all persons belonging to the said
Government and Company according to the laws of this kingdom and to execute judgment
accordingly.
Almost contemporaneously with this Charter came the Cession of the Island of
Bombay by the Portuguese to the English and Its lease by Charles II to the East India
Company In 1668, Prior to that this was the territory which had been under Portuguese rules
and Portuguese law governed It.
The Charter of Charles II transferring the Island of Bombay to the Company, required
the Company to enact laws “consonant to reason and not repugnant or contrary to” and “as
near as may be agreeable to” the English laws. The charter also directed that the courts an
During the Mughal rule in India, Muslim Criminal law was the law of the land for administration of criminal justice. When the Company assumed the responsibility for administering Bengal, Bihar and Orissa, the Muslim criminal law was very well entrenched in that territory. The British administrators did not immediately disturb the status quo, and allowed this law to continue. The law, however, had a number of glaring defects. Many of its principles were not in accord with the British notions of justice, common sense and goods government. The law was designed to subserve the needs of a society profoundly differed from the one which was in the process of evolving in Bengal after the advent of the British In the later half of the 18th century. The British administrators were therefore gradually led to modifications in the Muslim criminal law by using their power to make Regulations. They thus adapted the Mashim criminal law to the needs of the society in Bengal and also according their own concepts of justice, policy and social behaviour,
The Muslim criminal law formally remained in operation in the mofussil of Bengal, Bihar and Orissa for over 100 years after the Company had taken over the administration Nevertheless, it underwent so many changes during this period that when in 1860 the Indian Penal Code was enacted’, the law prevailing at the time could hardly be characterized as a Muslim criminal law, It had become transformed by then into Anglo-Muslim law of crime, it had been detached from its base in Muslim Jurisprudence.
MUSLIM LAW OF CRIMES: SALIENT FEATURES
The traditional Muslim criminal law broadly classified crimes under three heads (i)crime against God: (i) crimes against Sovereign; and (iii) crimes against private individual” The first category included such crimes as apostasy, drinking intoxicating liquors, added etc. The second category included such crimes as theft, highway robbery and robbery murder. The third category included such offences as murder, maiming, etc., against the human body. Accordingly, the Muslim criminal law arranged punishment various offences into four categories, viz, Hald, Tazeer, Kia, which was commutable into diya
Kisa
Kisa or retaliation meant, in principle, life for life and limb for limb. Kisa applied to cases of wilful killing and certain types of grave wounding or maiming, offences falling in the third category mentioned above. Kisa, or retaliation, was regarded as the right of man and gave to the injured party or his heirs a right to inflict a like injury on the wrong-doer as he had inflicted on his victim
Diya
Diya or Diyut meant blood money. In certain cases, like unintentional injuries, diya was awarded to the victim on a fixed scale. In cases where kisa was available, it could be exchanged with diya, or blood money. The injured person or his heir could accept diya or kisa as he liked Thus, in case of murder, the heir of the victim could accept diya and forgo his right to claim death on the murderer. So, also, in cases of intentional wounding or maiming, the victim could accept diya in lieu of kisa. All these were crimes against the human body Practically, de punishment of diya was an alternative to kisa.
Hadd
Hadd etymologically meant boundary or limit. In criminal law, it meant specific penalties for specific offences. The underlying idea was to prescribe, define and fix the nature, quantity and quality of punishments for certain particular offences which the society regarded as anti-social or anti-religious. These offences were characterised as being against God, or, in other word against ‘public justice’. The punishments prescribed under hadd could not be varied, increased or decreased; if the offence was established, the prescribed punishment had to follow a matter of course. The judge had no discretion in the matter. Some of the hadd punishment , were death by stoning or scour amputation of a limb and flogging.
Tazeer:
Tazeer meant discretionary punishments. These punishments were inflicted at the discretion of the judge as there were no fixed rules to prescribe such punishments. Usually, these punishments consisted of imprisonment, exile, corporal punishment, boxing on the ear or any other humiliating treatment. These offences could be regarded as falling in the second category mentioned above, i.e. offences against the Sovereign. In cases of offences governed by tazeer, the kind and amount of punishment was left entirely to the discretion of the judge who could even invent new punishments according to his whims and notions. Tazeer could be inflicted in several situations. First, it could be inflicted for offences for which penalty by way of hadd or kisa was not prescribed. These offences were not serious or of a heinous nature and so were left to be punished according to the discretion of the judge. The number of such offences was very large, e.g.. use of abusive language, forgery of deeds or letters with a fraudulent design.
CHANGES IN CRIMINAL LAW 1772
When Warren Hastings introduced his judicial plan in 1772 for administration of justice in Bengal, Bihar and Orissa, no changes were introduced in the substantive law of crimes except for one change, vic, a severe punishment was introduced for dacoity The preamble to the Regulation pointed out that for some time, the peace of the country had been very much disturbed by bands of dacoits, who not only infested the high roads, but often plundered whole villages, burnt houses, and murdered the inhabitants; these out-laws had eluded every attempt of the Government for detecting and bringing them to justice It therefore became the indispensable duty of the Government to try the most rigorous means to punish the dacoits. In justification of the severe punishment proposed to be inflicted, it was pointed out that “the dacoits of Bengal are not, like the robbers in England, individuals driven to such desperate courses by sudden want: they are robbers by profession, and even by birth, they are formed into regular communities, and their families subsist by the spoils which they bring home to them they are all, therefore, alike, criminal wretches, who have placed themselves in a state declared war with our Government, and are therefore wholly excluded from every benefit of its laws.” The innovation was in a way justifiable under the Muslim law doctrine of styasar but as has already been pointed out earlier, the law in question dead letter in practice Apart from this change, Warren Hastings left the Muslim law untouched in 1772. In spite of his predilections in favour of the indigenous laws generally. Warren Hastings was convinced of the need of reforming the Muslim law of crimes in certain respects. Accordingly, in 1773, be formulated certain proposals for its modification. In the first place, he suggested that intention and not the nature of the weapon used be made the test of wilful murder. “If the intention of murderer be clearly proved, no distinction should be made with respect to the weapon by which the crime was perpetrated. The murderer should suffer death, and the fine be remitted.” The strange distinction had generated inequality and injustice. In the second place, Warren Hastings suggested abolition of the privilege granted by the Mohammedan law to the sons or the nearest of kin to pardon the murderers of their parents or kinsmen. If the rule as such was not done away with then the Government should interfere, by its own authority, to prevent its taking effect, by causing the sentence to be executed without leaving an option in the children or kinsmen to frustrate it by their pardon. According to Warren Hastings, it was a “law of barbarous construction, and contrary to the first principle of civil society, by which the state acquires an interest in every member which composes it, and a right in his security.” Hastings also thought that this “savage privilege” encouraged crime. Thus Hastings was seeking to transform homicide from a purely private matter into a public matter. Thirdly, he advocated abolition of the rule which required the children, or the nearest of kin of the deceased, to execute the sentence passed on the murderers of their parents or kinsmen.
CHANGES IN CRIMINAL LAW: 1790-93
The first systematic attempt to modify the Muslim law of crimes was initiated by Cornwallis in 1790. The background conditions in which reforms in the criminal judicature were introduced in that year have already been stated.” The general condition of criminal judicature in the Provinces of Bengal, Bihar and Orissa was exceedingly and notoriously defective. The evils complained of proceeded from two sources: the gross defects in the Muslim law and the defects in the constitution of the courts established for the trial of the offenders. To remove the defects in the criminal courts, Cornwallis completely reorganised the criminal judicature.” But it was also extremely necessary that the defects in the Muslim law of crimes were also removed. otherwise the newly established courts could not be of much effect and value in improving the quality of criminal justice. Certain features of the law were “most evidently contrary to natural justice, and the good of society.” Along with reforming the courts, it was also necessary to rid the criminal law of those features which militated against the social well-being so that the flagrant abuses in the area of criminal justice could be avoided. Most of the magistrates condemned one or the other of the features of the Muslim penal law and recommended modifications therein. Lord Cornwallis was convinced of the utter indispensability of radical reforms in the criminal law. Although the formal status of the Company was still that of the Diwan, Cornwallis felt no hesitation in undertaking the reform of law: “That this government is competent to make such an amendment of that law, as may appear “thus essentially necessary. cannot, I think, admit of a doubt: since being entrusted with the government of the country, we must be allowed to exercise the means necessary to the object and end of our appointment.” He also found the necessary authority for amending the law in S. 7 of the Regulating Act which vested the ordering of revenues and territorial acquisitions in the Government.
Points to remember
- Personal law is defined as a law that applies to a certain class or group of people or a particular person, based on the religions, faith, and culture. In India, everyone belongs to different caste, religion and have their own faith and belief. Their belief is decided by the sets of laws. And these laws are made by considering different customs followed by that religion. Indians are following these laws since the colonial period. In this chapter, we will learn about the personal laws of Hindu and Muslims.
- Kisa or retaliation meant, in principle, life for life and limb for limb. Kisa applied to cases of wilful killing and certain types of grave wounding or maiming, offences falling in the third category mentioned above. Kisa, or retaliation, was regarded as the right of man and gave to the injured party or his heirs a right to inflict a like injury on the wrong-doer as he had inflicted on his victim
- Diya or Diyut meant blood money. In certain cases, like unintentional injuries, diya was awarded to the victim on a fixed scale. In cases where kisa was available, it could be exchanged with diya, or blood money. The injured person or his heir could accept diya or kisa as he liked Thus, in case of murder, the heir of the victim could accept diya and forgo his right to claim death on the murderer. So, also, in cases of intentional wounding or maiming, the victim could accept diya in lieu of kisa. All these were crimes
against the human body Practically, de punishment of diya was an alternative to kisa.
- Hadd etymologically meant boundary or limit. In criminal law, it meant specific penalties for specific offences
- Tazeer meant discretionary punishments. These punishments were inflicted at the discretion of the judge as there were no fixed rules to prescribe such punishments
