Every society in this world is inflicted with crime. No matter what the nature of the crime is. Even though the primarily motive is to eradicate crime but the very fact that society is vast and the psychology of crime has always been there, henceforth this Utopian ideology cannot be achieved. However, there has always been a fair attempt to deter such actions. Which eventually gave broth to criminal law in the world. On that line this paper fairly tries to provide a brief introduction to the evolution of criminal law in context of India. In the order, an attempt has been made to go chronologically.
Humanity howling for peace, tolerance, equality, justice and crimeless society dates back to a history of nomadic community and ancient civilization. The grapple to ensure justice and secure peace is something parallel to the evolution of complex society, where unquenched thrust for resources, avenge, lust, wicked temperament for one another had a massive transition. In order to curtail such a detrimental changes, our civilization needs a cure in form of legal jurisprudence.
One such legal cure is the evolution of Criminology, understanding of crime and evolution of criminal law as a subject as well as a reality that seeks to parish the deleterious elements in the society. But one curious thing to note is that, though the societies in various ways had went through a great strides in its political, technological, social and economic fields, the basic grievances that has emerged way back is still the same as it were thousands of year ago. These contemporary grievances are the crime oriented monotonous temperament of the societies across the globe.
The sense of right and wrong is something that a man always possesses, the conscience of a human being was the rudder that was used to decrypt between what is right and what is wrong. The history of mankind encrypted with the theory of reward and punishment depending upon the circumstances is enough to perceive age old rituals pertaining to crimes and criminals. Whether we turn the pages of religious text, letting wrong go unpunished had never been the moto of the Sharia law, the Mosaic laws, or the Vedic texts. Justice was and has been a virtue that is central to human life and society.
From the time immemorial, ancient civilizations across the globe don’t use to differentiate between civil law and criminal law. it is alleged that the first signs of a distinction between civil and criminal came during the Norman Invasion of England and The Sumerian people is believed to be the birth giver of the earliest known example of a written set of criminal law that was formulated around 2100-2050 BC. This code is believed to be the first to distinguish among civil and criminal wrongdoings. The development of court settings wherein the state distributes justice had its origin in the 18th Century. Prior to this massive development and distinction came into being, the laws of the land was uniform in both civil and criminal matter.
One of the earliest documents in Europe that call attention to criminal law had its origin only after the Duke of Normand (William the Conqueror) invaded England in 1066. The English government formulated a system known as common law, which is mechanism that creates and refurbish norms that guides a community. This law deals with both criminal and civil aspects, and works through the formation and continuous emendation and extension of laws by legal professional as they provides verdicts on legal issues which eventually turns out to be precedents that assist in determining the result of future pocket.
In Europe, one of the earliest documents that highlight criminal law emerged after 1066 when William the Conqueror, the Duke of Normandy, invaded England. By the 18th century, European law began to specifically address criminal activity and the concept of trying criminals in a court room setting began to develop. The English government created a system known as common law, which is the process that establishes and updates rules that govern a group of people.
Common law covers both civil and criminal matters, and works through the creation and continual revision and expansion of laws by judges as they make rulings on legal matters. These rulings become precedents to help determine the outcomes of future cases.
Among the list of events and notable documents that guided with the evolutionary mandates of criminal jurisprudence is the Urukagina’s Code which was believed to be created in 2350 BC. Though this code has never been detected yet it has its trace in may other documents as an amalgamation of persistent ordinances created by Mesopotamian kings. Further the 2050 BC Ur-Nammu’s Code is known to be the oldest written legal code of which a copy has been found. As per the Archaeological evidence this code was braced with a modern legal system that includes specialized judges, the giving of testimony under oath, the proper form of judicial decisions and the ability of the judges to order that damages be paid to a victim by the guilty party.
At any point of time, every society is endured by one or other form of offence which has been witnessed since the early dawn of human civilization. Whatever may be the form, crime is a social eccentricity which vitally needs to be penalized for the prejudiced and unjustified acts of the offenders in order to safeguard the society and to ensure peace, justice and placidity in the society.
When it comes to the jurisprudence of criminal law in India, the criminal justice system of Indian civilization has evolved in all aspects like Socio-economic and political conditions through the passage of time. In order to recognize the same historical transition of Indian criminal system, firstly we have to embrace the Ancient India with all its customs, rituals, tradition and beliefs. From Vedic era to Mughal, Colonial and post colonial regimes that facilitates the demographical transformation of criminal law.
In the Vedic era Vedic literature utters the requirement to remove evil still no judicial system was in place. Rig-Vedic period states that punishment of a thief or murder rested with the same individual wronged and this sort conduct, which regulated the affairs of human being, came to be recognised as Dharma or law. From the time immemorial the head of the community use to decide on the matters of punishment that to how one should be punished equivalent to the evil done.
In the brilliant history of more than 5000 years. India had a comprehensive inspection law that accommodate the chronicled methods of refinement of legalized establishment in Hindu and Muslim era. The sovereign at that time use to depend on different fountainhead of law like Smriti, Sruti, Puranas, Dharmasutra, Manu Smriti, Dharmshastra and so on.
Different Smritis for instance Manu Smriti clearly indicate the importance of penalising the evil. However in the ancient times there were no transparent distinction between civil and criminal laws but the limits can be characterized at the gravness of the offence committed.
Historically criminal law has been conceived as a despotic regime of the state which tries to impose its explanation of right and wrong. Therefore an analytical approach is to provide little description to the vindication and limits of criminal law. It interrogates the lawfulness and sensibility of criminal law as an instrument of state power.
During the regime of Delhi Sultanate the distinction of civil and criminal law was not very prominent. The sultans use to execute shariat law of crime and punishment, the important fount of which were the Quran, the Ijma and Hadis. The canonical cases were separated from the civil and criminal suits.
Unlike the Hindu law, all crimes under Islamic penal code were not considered injuries to the State. All the offences under Islamic laws were distributed in three categories, (I) crimes against God, (ii) crimes against the State, and (iii) crimes against private individuals
The court of the sultan constitutes the highest criminal and civil court of justice that deals with both original as well as appellate cases. The court of qazi-i-quzat or the chief justice of the empire is the secondary level of judicial body that facilitate delivery of justice. Muhtasib the inspector of public morals work both as police and judge in the inspection of the canon law by the Islamic people. Below that there were village panchayats that enjoys the sanction of the state to monitor justice as per the regional custom, rituals, tradition and the religious law of the populace. The criminal penalty used to be capital punishment.
The most important thing to note during the regime of Qutbuddin and Iltutmish was that, the judiciary was independent and Sultans didn’t use to impede in the judicial system. In fact Delhi sultans were prominently influenced by Abbasside institutions and utilize the same to reform the judiciary in Delhi and other states. The methodology embraced by Sultans seems to exhibit that there were common Judiciary for all Muslims and the power, position, offices and functions of judges during the regime was universal and therefore, judiciary was self-moving institution.
With the arise of Mughal Empire and collapse of the Sultanate of Delhi in India (1526 C.E). The judicial system went through a greater modification. It is of the opinion that the Mughal rulers were the ‘fountain of justice.’ They set up a separate justice department called Mahakuma-e Adalat to administer law and justice within the empire. Alike Delhi sultanate, the laws at that time were largely based on Quran and the Sovereignty resides in Allah and the ruler is believed to be his faithful servant that were assigned a task to carry out his will on earth. The emperor was contemplating to be appointed as the representative of the omnipotent with amenableness to deliver justice among the subjects in his province.
The judicial system during the Mughal rule was divided into criminal and civil matters, though this distinction was fairly based on the consensus and consciousness of the community and the delivery of justice was fairly based on religious text without any uniform and codified rule yet the distinction of courts based on the area of crime was very mature and at the capital seat in provinces, districts, praganahs, and villages, there were a systematic gradation of the courts. India’s capital city Delhi had its courts divided into three segments.
1. The Emperor’s Court: this court was presided by the emperor who has jurisdiction over the case civil as well as criminal cases. Also the court was supported by Mir Adil, Mufti and Daroga-e-Adalat in original jurisdiction. In case of appellant jurisdiction, Qazi-ul-Quzat and other chief justices assist the emperor to deliver justice.
2. The Chief Justice’s Court: this was the capital’s second significant courtroom, controlled by the Chief Justice and essential Qazies who were appointed as puîne judges. This court had jurisdiction over civil, original and criminal cases.
3. The Chief Revenue Court: this court entertains cases dealing with revenue, which was controlled by Daroga-e-Adalat, Mir Adil, Mufti and Muhtasib.
In addition to these courts, the criminal law during Mughal Empire had separate judicial administration that was governed on multilevel for instance
· Faujdaar Adalat which was presided over by a Faujdar who had the mastery to control and prosecute riot.
· Further there was a Kotwal-e-Shahar which control minor criminal cases.
Also during the Mughal Empire the criminal were required to be produced in front of the King who was the author of all decisions and his word was considered final. Islamic law was used to decide what punishment would be pronounced on the criminal.
The administration of justice during medieval period suffered from enormous defects as there were no distinction between the judiciary and executive, Islamic criminal law during that time was not uniform and certain, also the rules laid down in Fatwa-i-Alamgiri was more contradicting. The opinions of Muslim jurists were different, which leave a for the Qazi to interpret and apply the laws in their own ways . Corruption was rampant at that time which provided a freedoms to the accused to simply pay bribe and get escape from the crime committed. Further the law of evidence was very unsatisfactory, uncertain and defective because no Muslim can be executed on the basis of an infidel evidence. In case of evidence of one Muslim was regarded as being equivalent to those of two Hindus.
The history of the legal system of Colonial India opens with the establishment of East India Company. Initially the administration of justice was very rudimentary and basic. The east India Company was sovereign on the main land to deal with civil and criminal cases. Privy Council the highest position for appeal in grave circumstances. But the purpose and goals of the criminal justice and methodology of its administration transform from time to time. So is the legal system during the colonial era. The birth of modern criminal law in India is the treasury of British rule.
The establishment of High court of Judicature, the court of governor and council, Choultry Court, established of Armillary and Mayors court. Experiment with the overall judiciary system with the passage of time. Distinction between the crimes related to civil and criminal matters along with the establishment of especial courts pertaining to both the matters like for instance in criminal justice, constitution of multilevel courts like Mofussil Faujdari Adalat, Sardar Nizamat Adalat, reforms introduced by the plan of 1772. Regulating act, establishment of Supreme Court of Calcutta, and high courts in different provincial towns are some of the celebrated features of the colonial empire that gave rose to the modern and contemporary thinking of crime, criminology and criminal law.
The Warren Wastings plan, which was introduced in Bihar, Bengal and Orissa for the administration of justice. In 1773 the plan got certain modification as suggested by Wastings, the privilege granted by the Muslim law to the son or nearest the kin to pardon there murderers of their parents got abolished though it never came in force. Further the first attempt to amend criminal law of Muslims was initiated by Lord Cornwallis in year 1790. Cornwallis deprives the Nizam with any authority. He repudiate important Islamic laws made by Abu Hanifa that unreasonably provides that a murdered wasn’t liable for criminal punishment in case it was committed by drowning, strangling, by weapon which was not made of iron and by poisoning. Also it stated that the kin of the deceased doesn’t have any right to rescind the punishment. In year 1791 the punishment of mutilation were replaced by hard labour and imprisonment.
Further the procedure of transforming and accepting Islamic criminal law continued. Penalty for forgery and perjury were intensified by Regulation II of 1807. Exemplary penalty were suggested for crimes like Dacoit through Regulations VIII of 1808. The law related to Adultery was modified by Regulations XVII of 1817. The requirement of four efficient male witnesses was stringently insisted upon and presumptive proof was not considered to be sufficient for warrant conviction. The rules prescribed said that the conviction for adultery couldn’t be based on creditable testimony, circumstantial evidence or confessions.
After all the hustle bustle in year 1833, an All India Legislature was created and all the reforms regulation mad efforts to establish a sound judicial administrative system pertaining to criminal law led to the codification and enactment of the Indian Penal code (IPC) in year 1860. During the time span of 1833-1860, lot of modifications were attached to the criminal law and the significant among the list includes that thugs came to be penalized with hard labour and imprisonment for life. The practice of slavery was declared to be non-recognizable and immoral by the company, dacoits were penalized by imprisonment for any shorter term with hard labour or by the transportation for life. Sati system was abolished by the reformers along with that lot of reforms were initiated to improve the condition of society.
In year 1833, the British government appointed a commission called “Indian Law Commission" with a motto to investigate into the powers, rules and jurisdiction of existing courts and to prepare a reports sets forth the outcome of the investigation and suggesting reforms. In line with the perceived ideology the commission worked on the Anglo-Indian Codes between 1834 to 1879. One of the most admired contributions of the first Law Commission of India was the codification of Indian Penal Code, which was submitted by Macaulay in year 1837. The code was accepted and assented as law year 1860. Apart from this Another major codified law was the Code of Criminal Procedure which was passed as a law in 1861, but at that time it menacingly guarded “rights” and “privileges” because they were alternatively elaborated as a symbolic and an actual marker of imperial power. The code initially preserved the legal supremacy of “European-born British subjects “by providing special advantages to them, such as amenability only to British Judges and magistrates, the right to a jury trial with a majority of European jurors and limited punishments. Yet, the codification of the criminal motion provided a structure in the Legal System of India which is still posses’ dominance through the years of British Rule in India.
The fundamental goal of criminal law is to safeguard society against the atrocities of offenders and law-breakers. In order to facilitate this objective legal system holds out threats of penalisation to prospective offenders, also it tries to make the actual law-breaker brook the given punishments. Therefore, criminal law, in its broader spectrum, consists of both the procedural and substantive criminal law.
The Criminal law of India aims to penalize the offenders and manufacture a society that is away from the clench of evil. Though the present society doesn’t follow retributive justice, still justice is not limited to the victim but for society at large. It is necessary to acknowledge the need for criminal law, or for that matter any law, to outline chaos that persistent in the society.
The transition of criminal law with the waves of time is something worth notice. From the premature, primitive, customary legal system to the present, modern and contemporary judicial framework is the outcome of efforts made by legal professional and jurists. The Indian Penal Code in all its glory is something that was made suited for India. The legacy that colonial regime provided us is still what today we adhere with, with few required amendments as per the call of time and culture, but this document has always been the yardstick for execution of justice victims.
Dostoyevsky the author of book Crime & Punishment wonderfully writes “Man is a mystery. It needs to be unravelled, and if you spend your whole life unravelling it, don’t say that you’ve wasted time. I am studying that mystery because I want to be a human being.” Owing to this in the contemporary society we establish order, fight for justice and punish the criminal based on the history and evolution of Criminal Law.