Dr.Ram Manohar Lohiya National Law

University, Lucknow

HISTORY

Development of Criminal Law in India

SUBMITTED TO: SUBMITTED BY:

Dr. Vandana Singh Pranshu Sinha

Asstt. Professor (History) 3rd Semester BALLB (Hons)

INTRODUCTION

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 good government. The law was designed to sub

serve the needs of a society profoundly different from the one which was in the process of

evolving in Bengal after the advent of the British in the latter half of the 18th century. The

British administrators were therefore gradually led to effect modifications in the Muslim criminal

law by using their power to make Regulations. They thus adapted the Muslim criminal law to the

needs of the society in Bengal and also according to 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 the Muslim criminal law.

It had become transformed by then into Anglo-Muslim law of crimes; it had been detached from

its base in Muslim Jurisprudence. This project details this process of transformation of criminal

law in India after the advent of the British.

MUSLIM LAW OF CRIMES

The traditional Muslim criminal law broadly classified crimes under three heads: (i) crimes

against God; (ii) crimes against Sovereign; and (iii) crimes against private individuals. The first

category included such crimes as apostasy, drinking intoxicating liquors, adultery, etc. The

second category included such crimes as theft, highway robbery and robbery with murder. The

third category included such offences as murder, maiming, etc., i.e. offences against the human

body. Accordingly, the Muslim criminal law arranged punishments for various offences into four

categories, viz., Hadd, Tazeer, Kisa, which was commutable into Diya. Offences were classified

under 4 main categories namely,

Kisas : Applied to offences against a person, eg willful killing, grave injury etc.

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.

Hadd : In these cases the law had prescribed fixed penalties for offences, which included

Zinat (Illicit intercourse), drinking, theft etc.

Tazir : Tazir meant discretionary punishment. The conditions in conviction in tazir were

not so strict as for cases under hadd.

CRITICISM OF THE SYSTEM

First, the law was very uncertain. On many points there were differences of opinion among the

Muslim Jurists. This gave a good deal of leeway to the kazi to interpret the law and apply to it

the specific fact-situation before him. A corrupt kazi could twist the law and misapply the same.

From the above brief survey, though the Muslim law of crimes would appear to be very severe

on its face, as it sanctioned some cruel punishments like mutilation and stoning, yet the claim

could officially be made for it that "as a system, the Mohammedan law of crimes is mild; for

though some of the principles it sanctions be barbarous and cruel, yet not only is the infliction of

them rarely rendered compulsory on the magistrate, but the law' seems to have been framed with

more care to provide for the escape of the criminals than to found conviction on sufficient

evidence and to secure the adequate punishments for offenders". Similarly, Warren Hastings also

thought that the "Mohammedan law is founded on the most lenient principle and an abhorrence

of bloodshed". The reason underlying this comment was that the harshness of the punishments

was compensated by the difficulty in getting a conviction. The Muslim law of crimes contained

much illogicality. It was based on some of those concepts of state and social relations whom the

Western thought had already discarded long ago. It suffered from complexities and a lack of

system. It drew no clear distinction between private and public law. Criminal law was regarded

more as a branch of private law rather than of public law. Its underlying principle was that it

existed mainly to afford redress to the injured; it had not much developed the idea that crime was

an offence not only against the injured individual but also against the society as such. The crimes

against God were regarded as crimes of an atrocious character. On the other hand, crimes against

man were regarded as crimes of a private nature in which the injured person had himself to take

an initiative to claim punishment of the offender. Only the crimes of the former nature, which,

however, were few, were regarded as worthy of public vengeance but not the crimes of the latter

kind. Though the crimes against man were punished by the state, yet the basic notion underlying

them was to give satisfaction to the injured person rather than to protect society. The crimes

against man, though no less ruinous to the peace and tranquility in the society than the crimes

against God, were, nevertheless, regarded as private wrongs and were left to the discretion or

caprice of the individual concerned. It was left to the injured in such cases to move the

machinery of the state to have the offender punished. That was a major weakness of the Muslim

criminal law. To take an example, while murder was regarded as an offence against man and so a

private offence, drunkenness was deemed to be an act against God and so was regarded as a

public offence. To a modern mind which regards murder as the most serious crime as it strikes at

the very basis of the existence of a civilized society, it looks rather irrational that murder be

regarded as a private offence while drunkenness should be deemed to be a public offence.

The primitive character of the Muslim criminal law prevailing in Bengal, Bihar and Orissa at the

time could not be better appreciated than by surveying the law of murder which, in the words of

Rankin, was "if taken as a whole, very complicated, technical and obscure". As noted above,

murder and homicide were regarded as private grievances. An offender could, therefore, be

prosecuted on a private complaint. The state did not regard it as its duty to move suo moto in a

case of murder. The Muslim law sanctioned the terrible punishment of mutilation which meant

slow, cruel and lingering death to the unfortunate person who had to undergo it, for he could not

adopt any honest means of livelihood. Such punishments were usually awarded by the courts in

Bengal and were executed in a very inhuman manner. According to the prevailing law, theft was

punishable by cutting off the right hand and left foot. Such punishments were inconsistent with

the refined notions of mercy and justice. Another grave defect of the Muslim criminal law was

the technical, and rather primitive; nature of the law of evidence which made conviction of

offenders quite difficult. No Muslim could be convicted capitally on the evidence of a non-

Muslim In other case, the word of a Muslim was regarded as equivalent to that of two non-

Muslims; the evidence of two women was deemed equivalent to that of one man. The Muslim

law insisted on very direct proof in all cases. Due to difficulties of proof, criminal law could not

be effectively enforced. In many matters, the law prescribed the specific number of witnesses

whose testimony was essential for convicting an offender. As for instance, to convict a man for

rape, it was necessary to have four witnesses who would swear that they had actually seen the

accused in the very act of committing the offence. A thief would be convicted only on the

evidence of two men, or of one man and two women, as the evidence of two women was equal to

that of one man. Such rules of evidence made proof of crimes difficult and made the

administration and enforcement of criminal law almost impossible.

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, viz., 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 1773, he 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.

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. 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. Fourthly, Hastings suggested that the fine imposed

for manslaughter should be proportionate not only to the nature of the crime, but both to the

nature and the degree of the crime, and to the substance and means of the criminal. Advocating

the adoption of these changes, he pleaded that although it was the policy of the British to leave

the criminal courts free of control, and let them act according to the Mohammedan law; yet many

cases might happen when a strict adherence to this policy "may prove of dangerous consequence

to the power by which the Government of this country is held, and to the peace and security of

the inhabitants.

CHANGES IN CRIMINAL LAW: 1790-93

The first systematic attempt to modify the Muslim law of crimes was initiated by Cornwallis in

1790. 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. 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. Cornwallis desired abolition of the rule under which a murderer was not held liable to

capital punishment if he committed the murder by strangling, drowning, poisoning, or with a

weapon such as a stick or club on which there was no iron, or by such an instrument as is not

usually adapted to the drawing of blood. In other words, that the intention of the criminal, either

evidently or fairly inferable from the nature and circumstances of the case, and not the manner or

instrument of perpetration (except as evidence of the intent) do constitute the rule for

determining the punishment. As early as 1790, Cornwallis had suggested that where the Muslim

law prescribed amputation of legs and arms or other cruel mutilation, the Government ought to

substitute temporary hard labour, or fine and imprisonment, according to the circumstances of

the case. Nothing came out of die suggestion at that time. However, this awful punishment was

abrogated in 1791. The Governor-General-in-Council resolved, that the punishment of mutilation

should not be inflicted on any criminal in future; thereafter, all criminals sentenced by the courts

to lose two limbs should, instead of being made to suffer such punishment, be imprisoned and

kept to hard labour for fourteen years; and the criminal sentenced to lose one limb should instead

be imprisoned and kept to hard labour for seven years.

In cases of murder, the refusal by the relations of the deceased to prosecute the offenders was no

longer to be considered as a bar to die trial and condemnation of the offenders. If the heirs

refused to prosecute, the Courts of Circuit were to proceed with die trial in die same manner as if

the slain had no heir, and die. Muslim law officers attached to the courts were to render the limva

on the supposition that the heirs had been the prosecutor and were present at the trial. This

provision thus avoided the probability of a murderer escaping the punishment by prevailing upon

the heirs, by bribes or other means, to refuse to prosecute him. Secondly, it was laid down that

the same rule would apply to all cases of murder wherein it was known that the slain had an heir

who was legally entitled to claim kisa, but who would neither appear after the lapse of a

reasonable time, nor communicate his intention, by vakeel or otherwise, of pardoning the

offender. In none of these two cases, the sentence was to be passed by the trial court.

Most of the prisoners who had undergone considerable terms of imprisonment consistent with

their offences were released. The Cornwallis Code of 1793 re-enacted all the above changes; it

did not affect any further modifications in the penal law, except one more change in the law of

murder, viz., if the heir of the slain had not attained the age required by the Mohammedan law to

render him competent to claim kisa, then, in such a situation, trial was to take place as if there

was no heir. The Muslim law officers were required to give futwa in such a case on the

assumption that an heir of sufficient age demanded kisa.

Slowly, therefore, the law of murder was freed from the discretion and caprice of the heirs of the

deceased. Gradually, murder was transformed from a private injury into a public wrong.

Cornwallis liberated the law of homicide from its archaic and primitive character and brought it

into line with the modem notions that the criminal law is meant not so much for private redress

but is a public law and that every crime should be regarded as having been committed against the

whole society and not merely against the particular individual who was the victim of the offence.

1797

As some confusion existed on certain points in the law of homicide, the law was explained and

restated in 1797 through Regulation IV. The purpose of the Regulation was to do away finally

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—(1) all heirs of the person slain entitled to prosecute the prisoner for kisa, had

attended and prosecuted him; (2) that all heirs were at an age competent to demand kisa; (3) 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 the

proceedings to the Sadar Nizamat Adalat. Through this provision, a complete remedy was

applied to the obstruction caused to public justice by the rule of Muslim law allowing discretion

to the heirs of the deceased. Another innovation made at the time was to substitute imprisonment

for blood money ( diya ). In cases where under the Muslim law, a person convicted of homicide

was liable to pay blood money (as in the case of unintentional murder), the Court of Circuit was

to commute the fine to imprisonment for such period as it considered adequate for the offence.

A large number of persons condemned to pay diya had been lodged in the prisons for an

indefinite period as they were unable to pay the money involved. 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 Sadar Nizamat

Adalat was empowered to grant such relief to these prisoners as it should consider in each case in

justice to require. Henceforth, fines were to be imposed not for the benefit of private parties, but

for the use of the Government. In such cases, a definite term of imprisonment in lieu of fine was

to be fixed so that after the expiry of the term, the prisoners were discharged even if they did not

pay the fine. The offence of perjury had very much increased and, therefore, by Regulation XVII

of 1797 severer punishments were prescribed with a view to discourage the offence. In

aggravated cases of perjury, a "perpetual stigma" could be inflicted on the forehead of a criminal

through gothic (branding) in addition to the existing penalties of corporal punishment,

imprisonment and exposure.

FURTHER REFORMS: 1799-1802

A number of changes were made in the criminal law during the years 1799-1802 by the

Government of Lord Wellesley.

The tenor of the reforms introduced hitherto in the criminal law had mainly been towards ridding

the law relating to murder of the will of the heirs of the deceased as regards punishing the

offender. There were, however, certain other aspects of this law which needed to be changed. the

theory of 'justifiable murders'. This rule was regarded as based on the -"ground of personal

distinction" and constituted an "exception from the general rules of equal justice". Hence it was

abrogated by Regulation VIII of 1799. No longer was any murder to be justifiable and in all

cases of murder, the offenders were to be punished with death. It was now laid down that in

those cases where the murderer was declared not liable to kisa solely on the ground of the

prisoner being the father, mother, grandfather, grandmother, or any other ancestor of the slain; or

one of the heirs of the slain being the child, grandchild, other descendant of the prisoner, or of

the slain having been the slave of the prisoner, the prisoner was to be condemned to death.

Also, in cases where a person unlawfully and maliciously intended to wound, maim or otherwise

do corporal injury to one individual, but caused the injury to another accidentally in the

prosecution of his intention, he was to be punished in the same manner as if the injury was

caused to the person whom he wanted to injure. Thus, existence of an unlawful and malicious

intention was the crux of the problem. There prevailed the abominable practice of infanticide,

that of destroying children by throwing them into water. The Government found, after an

investigation, that there was no religious basis for such a practice and it was indulged into partly

from economic reasons and partly from a blind belief in its efficacy as a stimulant to the fertility

of the mother. Regulation VI of 1802, therefore, abolished the "criminal and inhuman practice of

sacrificing children" and declared infanticide punishable as wilful murder liable to a sentence of

death.

1807-1860

The process of modifying and adapting Muslim law of crimes continued. Punishments for

perjury and forgery were enhanced through Regulation II of 1807. Exemplary punishments were

prescribed for dacoity through Regulation VIII of 1808 as the crime had increased enormously.

By Regulation XVII of 1817, the law relating to adultery was rationalised and modified.

The Regulation laid down that henceforth conviction for the offence of adultery could be based

on confessions, creditable testimony or circumstantial evidence. The maximum punishment to be

inflicted for the offence was fixed at 39 stripes and imprisonment with hard labour up to seven

years. Married women were not to be prosecuted on such charges save by their husbands. 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.

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. As, for

example, the punishment for simple burglary, to start with, was no less than 14 years,

imprisonment, but then it was reduced to seven years' imprisonment. In 1818, it was made

cognizable, when unaccompanied by aggravating circumstances, by the magistrates and often

punished by one or two years' imprisonment. Gang robbery cases were at first referred by the

Circuit Judge to the Sadar Nizamat Adalat and punishment was death, or imprisonment for life.

Since 1825, under Regulation XVI, the crime, if unaccompanied by aggravating circumstances,

came to be punished by the Sessions Judge himself by seven years' imprisonment. In 1825,

women were declared completely exempt from corporal punishment by stripes. Formerly all

cases of affrays and boundary disputes were committed to the sessions for trial; then, minor cases

became cognizable by the magistrates, the maximum sentence not exceeding one year's

imprisonment.

In 1829, through Regulation XVII, a great social reform was introduced amongst the Hindus

with the abolition of the sad. The custom of sati or burning alive of Hindu widows was declared

to be illegal and 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.

After 1833, an All India Legislature was created. In 1860, the Indian Penal Code was enacted.

During the period 1833-1860, only a few changes were made in the criminal law. The important

ones were: thugs came to be punished with imprisonment for life with hard labour; 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.

In this way, the Muslim law of crimes prevalent in Bengal was reformed and adapted by

legislative process. The systematic supersession 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.

CRIMINAL LAW IN BANARAS AND WESTERN PROVINCES

The above account of the development of criminal law in Bengal also holds good for Banaras

and other ceded and conquered territories which all formed part of the Bengal Presidency. All the

various reforms introduced in Bengal in the Muslim law of crimes, were mutatis mutandis

introduced in Banaras and other territory also through various Regulations. On a few matters,

however, some special legislation was undertaken for Banaras. The most typical example of this

was the privilege extended to the Brahmins of Banaras of not being punishable with death,

transportation having been substituted for the capital sentence for them. The privilege was,

however, abolished in 1817. The evil of sati was made a criminal offence in 1830.

CRIMINAL LAW IN MADRAS PROVINCE

The Muslim law of crimes was operative in the mofussil of the Madras Presidency. It 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. 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 define the punishments for these offences, Regulation VI was passed.

Imprisonment with hard labour from 4 to 7 years along with 150 stripes could be awarded as the

punishment for the offence. Banishment could be substituted for the punishment of

imprisonment for the same duration. Regulation I 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 the evidence of a

non-Muslim against a Muslim admissible in criminal trials. By Act I of 1840, the Fozdari Adalat

was relieved from the obligation to take a futwa from its law officers. The absence of futwa was

not, however, to dispense with the Muslim law in any case to which it was still applicable. The

reasons 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. Persian records of trials would be rendered unnecessary and it

would save time in deciding cases if the Muslim law officers were dispensed with.

CRIMINAL LAW IN 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 mofussil of the Bombay Presidency, the Muslim

law of crimes was not the general law and was not so well entrenched as it had been in the

mofussil 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. To

Christians and Parsees, the English criminal law was to be applied; while in the case of Hindus

and Mohammedans, the `native expositors’ of law were to be asked what punishment the law of

the accused prescribed for the offence which the judges of the Court of Sessions found on the

facts have been committed. Thus, the offenders were to be punished according to three systems

of criminal law: English Law, Hindu Law and Mohammedan law. In course of time, the frontiers

of the Bombay Province expanded considerably with the annexation of the Maratha territory. In

this newly acquired territory, Muslim law of crimes was not operative; criminal justice was

administered on a customary basis and not specifically according to the Hindu law of crimes.

Mountstuart Elphinstone, Governor of Bombay, who was a great admirer of Bentham, was

convinced of the need of a better and more uniform system of law, 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 mofussil of Bombay

Presidency.

Unlike the mofussil, in the three Presidency Towns of Calcutta, Madras and Bombay, the

Supreme Courts administered the English law of Crimes. According to the commentators, the

English criminal law at the time was more sanguinary than the Muslim criminal law as applied in

the mofussil. The only safeguard against the harshness of the English criminal law was that the

courts were to enforce English law only to the extent it was suitable to the conditions prevailing

in the Presidency Towns. Under this qualification, the court could refuse to administer any rule

of English criminal law as being unsuitable to the conditions prevailing in the Presidency Town

concerned.

CONCLUSION

The muslim law formally remained in operation in the mofussil of Bengal, Bihar and Orissa for

over 100 years after he company had taken over the administration.Nevertheless, it underwent so

many changes during this period that when in 1860 Indian Penal Code was enacted, the law

prevailing at the time could hardly be characterized as the Muslim Criminal Law.

The process of repealing and amending the Muslim Criminal Law, and supplementing the same

with some new approach to criminal law, through government enacted regulations, started in the

right earnest of Lord Cornwallis in 1790. This process continued unabated till 1860, when the

Indian Penal Code finally superseded whatever did remain of the traditional Muslim Criminal

Law by that time.

At the dawn of independence, the parliament of independent India was the forge where a

document that will guide the young nation was being crafted. It will fall on the keen legal mind

of B. R. Ambedkar to formulate a constitution for the newly independent nation. Perhaps it is the

consequent understanding of law and its relation to society that prompted the founding fathers to

devote the energy required to form a Constitution of unprecedented magnitude in both scope and

length.

The Constitution of India is the guiding light in all matters executive, legislative and judicial in

the country. It is extensive and aims to be sensitive. The Constitution turned the direction of

system originally introduced for perpetuation of colonial and imperial interests in India, firmly in

the direction of social welfare. The Constitution explicitly and through judicial interpretation

seeks to empower the weakest members of the society.

From an artifice of the colonial masters, the Indian legal system has evolved as an essential

ingredient of the world’s largest democracy and a crucial front in the battle to secure

constitutional rights for every citizen.