Theoretical overview
The Muslim criminal law was archaic and primitive system and it could not have been practicable to keep t operation for hundred years without being returned extensively It was incumbent on the Government reform the traditional law with a view to secure an effective administration of criminal juice the interest of protecting life liberty anal property of the people and for avoiding manifold inequalities and which resulted from the administration traditional as in the initial stages there was reluctance amongst the British administrators to interfere with the established law hut this complex washed under the leadership of Cornwallis who was convinced that there was on alternative before the government but to undertake extensive adjustments in the system the
To start with, the method adopted to modify the law was some what 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 under to respect their religious susceptibilities and to make the system workable, the expedient adopted was to require the law officers to give the fatwa 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 lance 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 modification in the law came to be made. As seen earlier in 1793. the regulation of 1 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 than 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 provisionsenabling “the Count of Circuit to dispense with the attendee and fits 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 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 1817, the Sadar Nizamat Adalat was given power to convict and sentence an accused sequined 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 at a general and compulsory system of law applicable to all Muslims and non-Muslims alike I was reported to the government that it was offensive to the sentiments and feelings of then on 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 authorized to avail himself of the assistance of respectable Indians in one of 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 the enquiries apart from the court and report the result to the judge. Secondly, the judge could constitute two or more persons assessors so that he could obtain the might be derived from the observations particularly in the examination of witness. Thirdly the judge could employ the Indians more nearly as the jury in a case in which any of the above three method was adopted fatwa of the Muslim law officers became unnecessary and it could be dispensed with by the page adopted, it was also Provided that when a person not professing the Muslim faith was brought to a trial on an offence, he might clam to be exempted from being tried under the Muslim law of crimes.
The Regulation made it optional for the Sadar Nizamat Adalat as well torequire a fatwa or not from its Muslim law officers according as the Adalat thought it expedient of necessary. Thus after the regulation of 1832 a became optional for the criminal courts to seek fatwa’s from the law officers. The old rule which made a obligatory to obtain fatwa on each criminal case was abrogated. The non-Muslim then 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 cloning years of the eighth century 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 so the enactment of the Indian Penal codeine 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 hand labor, the status of slavery was declared to be nonrecognizable in any court of the company, dacoits came to be punished with transportation for life, or with imprisonment foray shorter term with hand labor. 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 from1834 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 in1860
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 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 fie pe 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 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 amative Magistrate, of the same caste and family, perhaps, as one of his own writes or contractions 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 commend 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 Brash Rule m India.
Criminal Administration in the Presidency Towns and Provinces
The developments 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 the administration change is a significant observation in the history of Britch 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 li 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 we reconsolidated 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 1 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 Muslim admissible in criminal trials Regulation X of 1827 introduced trial by jury in the province of madras.
Regulation I of 1830 abolished the practice of a sati. Regulation XX of 1802 while making provisions for the trial of these 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 to dispense with the were that the greater part of the existing criminal law was to be found in the Madras Code of Regulation and the rest could be ascertained from the precedents of the courts The judges could therefor competently administers criminal law without those of these officer.
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 them muffials 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 nation for this was that the large tractor 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 all as the general law of the land, adopted the expedient of administering personal law of crimes The scheme was laid down in section 16 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 Governos of Bombay and a great admirer of Bentham was convinced of the need for better and uniform system low 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 Elphinstone Code Regulation XIV in the code contained the criminal law to be applied in the company’s courts in the mofusil 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 the religion while at the same time also providing a code case of access for those individuals of the community to whom as not specific national on religious code of criminal law, the English law has with considerable inconvenience being subject nation.
The fact remains that the Regulation was neither logical, not analytical nor systematic Many important classes of offences were altogether unnoticed by the regulation This omission was sought to be made goodbye one sweeping provision in 57 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 recognized by the code and if not should be visited with an equivalent and appropriate punishment of a recognized kind The only merit of the Regulation was that it was the Fast 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 private was clearly exposed during the long- running debates about uniform criminal procedure. For instance, both locals and Britons in India maintaining their night 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 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 454 sections and defines the legal processor adjudicating claims of violation of criminal law The Indian Evidence Act of 1872 which originally contained 167 section 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.
Points to remember
- 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 so the enactment of the Indian Penal codeine 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 hand labor, the status of slavery was declared to be nonrecognizable in any court of the company, dacoits came to be punished with transportation for life, or with imprisonment foray shorter term with hand labor.
- 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.
- Another law codified was 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 developments 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 the administration change is a significant observation in the history of Britch rule in India. Emphasis must be given on the individual regions and how laws were developed in each of these regions
- Regulation 1 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 Muslim admissible in criminal trials Regulation X of 1827 introduced trial by jury in the province of madras.
