DEVELOPMENT OF CRIMINAL LAW

I. INTRODUCTION

A Criminal law is the area of law that relates to prohibited conduct in society. It
includes the punishment and rehabilitation of people who violate such laws. There is
no clear reference to the existence of judicial organization in the Vedic period. It
appears that the village elders acted as the judges and the punishments was awarded
according to the nature of the offence, in accordance with the local usages and
customs. In ancient India the administration of justice was centralized and it always
remained separate rom the executive. The Muslim administration of justice in
Medieval India suffered from many defects s there was no separation between the
executive and judiciary.

I. ANCIENT HINDU CRIMINAL LAW

Before the conquest of India by the Muslims, the penal law prevailing in India was the
Hindu Criminal Law. It is now well established that in Ancient India there existed a
systematic and well-defined criminal law. The punishment was considered to be a sort
of expiation which removed impurities from the man of sinful promptings and
reformed his character. Ancient Smriti writers such as Manu, Yajnavalka and
Brihaspati state that there were 4 methods of punishment, namely, by gentle warning,
by severe reproof, by fine and by corporal punishment and declare that these
punishments shall be inflicted seperately or together according to the nature of the
offence. These punishments served four purposes: to meet the urge of the person
suffered, for revenge or retaliation, as deterrent and preventive measures and for
reformation or redemption of the evil doers.
This country had a similar system of law for over 4000 years. The Dharma sutras and
Kautilya’s Arthashastra, however, present a more detailed and well developed system
of criminal adjudication prevailing in their time.
 II. EARLY MUSLIM CRIMINAL LAW

Before the arrival of the Britishers, the Mohammedan Criminal Law was prevailing in
India. Muslims after conquering India imposed their criminal law on Hindus whom
they conquered.

1. Classification of offences
Under the four broad principles, the Mohammedan Criminal Law classified all
offences for the punishment namely –
 Qisas or retaliation – It applied specifically to offences against the
person committing wilful killing, maiming and grave injury.
 Diya or blood-money – In certain cases where no retaliation was
allowed, the injured party had a right to demand only blood-money
which was known as Diya.
 Hadd or fixed penalties – It meant boundary or limit. In criminal law it
specifically meant penalties for specific offences. Punishments under
had were given under offences such as drinking wine, theft, highway
robbery etc.
 Tazir or discretionary punishment – It means discretionary
punishments. These punishments were inflicted at the discretion of the
judges as there were no fixed rules to prescribe such punishments.
Usually, these punishments consisted of imprisonment, exile, boxing in
the ear or any other humiliating treatment.
Thus the Muslim Criminal Law tried to make the distinction between
murder and culpable homicide but it did not rest on the intention or
want of intention of the culprit. There was no class distinction between
private or public law and between crime and tort. This led to injustice
and corruption.

III. CRIMINAL LAW IN OTHER PARTS OF THE COUNTRY

 a) In Benaras and Agra – The development of criminal law, as applicable to
Benaras and other conquered territories, was more or less on the steps similar
to the development of the law of crimes in Bengal. The British India
legislators made the criminal law applicable to all castes. The evil practice of
burning of widows alive on the death of their husbands was made a criminal
offence. In Benaras, the authorities gave recognition to many Hindu ideas,
feelings and practices.
b) In Madras – In Madras Presidency, the Mohammedan Criminal Law was
enforced in the same way as in the presidency of Bengal. Regulations of 1808
and 1811 made some remarkable contributions.
c) In Bombay – In Bombay, the Mohammedan criminal law was not the general
law of the land. The parsis and Christians were to be governed by English
Law. In Mohammedan Law, as it applied in Bombay, certain modifications
were made on the lines of the Cornwallis Code of 1793.
d) In Punjab – After the death of Raja Ranjit Singh in 1939 the Sikhs were
defeated in the Second Sikh War and Lord Dalhousie annexed Punjab to
British Empire. The Mohammedan Law was not acceptable to the Sikhs and
introduction of immediate legislation was not possible. Sir Richard Temple
prepared the first code for the administration of the Punjab.

This position of the criminal law in most important parts of India namely
Bengal, Madras, Bombay, Punjab etc. continued till 1858 when the company’s
government was taken over by the crown.

IV. DEFECTS OF MUSLIM CRIMINAL LAW

The Muslim administration of justice in Medieval India suffered from many defects.
It was defective as there was no separation between executive and judiciary. In many
cases Muslim criminal law was not certain and uniform in practice. The law of
evidence under Muslim law was very defective, unsatisfactory and of primitive nature
 because no Muslim could be given capital punishment on the evidence of a non-
believer.
a) Incomprehensibility of principle – In actual practice it was realised that the
law laid down in Hidaya was most conflicting, confusing and incompatible. In
each case the interpretation of law depended on the Qazi who presided over
the court.
b) Unscientific classification – crimes were of 3 kinds : against God, against the
State, and against private individuals but with exceptions crime was
considered to be a wrong done to the injured party not an offence against the
State and punishment was regarded as the private right of the aggrieved party.
c) No distinction between private and public law – There was no clear distinction
between private and public law.
d) Blood- money and pardon – The law of Diya was also highly unsatisfactory to
the people. According to the Muslim law, the son of the murdered persons was
authorised to pardon the murderers of their parents. This made the life of a
human being very cheap to be assessed in money value.

However, the defects of the Mohammedan Criminal Law gradually led to a

growing demand for reforms in it from every section of the society. The
Mohammedan administrators took no steps to improve the situation. It was
only during the East India Company’s administration that the strong
reformative steps were taken.

V. REFORMS BY ENGLISH ADMINISTRATORS

The English administrators of East India Company introduced certain reforms from
time to time to mould, refashion and amend the Mohammedan Law and for a long
time it continued to be the law of the land.

1. Warren Hastings :
Soon after the acquisition of Diwani by the company, the question arose whether
the it could alter the existing criminal law in India. The first interference with the
 Mohammedan Law came in 1772 when Warren Hastings changed the existing law
regarding dacoity to supress the robbers and dacoits. He criticised boldly and
attempted to introduce reform in various ways. To regulate justice in Bengal, he
prepared plans and introduced reforms in 1772,1774 and 1780.

2. Lord Cornwallis :
Lord Cornwallis concentrated on removing two main defects namely, gross
defects in Mohammedan Criminal Law and defects in the constitution of courts.
 He introduced the importance of intention in committing a crime, instead
of the weapon with which the crime was committed.
 Punishment of mutilation of organs was substituted by fine and hard
labour and imprisonment.
 In case of refusal or neglect to prosecute the offender, a record was sent to
Sadr Nizamat Adalat for passing final orders.
 Consideration of witnesses on religious grounds and gender basis were
abolished. The Muslim law thus stood modified in 1792.
 In order to make the law certain in 1793 it was also provided that the
regulations made by the government were to be codified and translated in
Indian languages.

3. Subsequent reforms up to 1831:

 Persons unable to pay blood-money were set free
 Fine imposed on a criminal was to go to government and not to private
person.
 Non-payment of fine was to result in a fixed term of imprisonment.
 Dharna was made an offence and punishment was prescribed for it.
 In committing homicide a distinction was made between innocent
intention and criminal intention.
 Practice of infanticide and its abetment were declared equivalent to murder
and were made punishable with death penalty.
 Mitigation or pardon could be recommended to Governor General in
Council in case of injustice.
  Robbery was another very recurrent offence which was common in the
country at that time. But suitable legislation to deal with them was passes
only as late as 1803.
 Dacoity was another major problem to be checked by law and punishment.
Laws were made more stringent to check dacoity.
 In order to check crimes of burglary, the existing regulations were
modified. It provided for punishment of imprisonment for 14 years for the
offence of burglary.

VI. END OF MUSLIM LAW AS A GENERAL LAW

The most remarkable and unique changes took place in 1832 when the application of
Mohammedan Criminal Law as a general law to all persons in India was stopped. The
Mohammedan Law earlier was archaic and primitive system which totally neglected
the Hindu Criminal Law. 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 judges. Regulation authorised the judge to seek help of the
natives in any of the following three ways :
1. By appointing the natives to the jury. It was the duty of the judges to appoint a
jury and also to lay down the manner in which the jury was to give its verdict.
2. By constituting two or more persons as assessors. The opinion of each of them
were given separately.
3. By referring any case or any point to a panchayat of persons.

On the whole, the ultimate responsibility to decide the cases were exclusively given to
the presiding officer. Non-Muslims were also made free from the jurisdiction of the
Mohammedan Criminal Law.

VII. FIRST INIDAN LAW COMMISSION AND INDIAN PENAL CODE

 1. The Indian Penal Code, 1860
In order to tackle the existing defective state of legislation, the British Parliament
passed the Charter Act, 1833 which changed the Governor General of Bengal into
the Governor General of India. The powers of the Presidencies of Bombay and
Madras to legislate was abolished. The Act also provided for the appointment of a
Fourth Member, as the Law Member, to the Council of the Governor General of
India.
The law commission work on the Anglo-Indian Code from 1834 to 1879 and one
of the most important contributions of the first Law Commission was the Indian
Penal Code, submitted by Macaulay on 31 December, 1837 and passed as a law
on 6 October, 1860. The work on the Penal code took almost over two years.

VIII. NECESSITY OF REFORMS

The IPC which was drafted by the First Indian Law Commission headed by Lord
Macaulay and with subsequent changes, was passed in 1860. Since, 1860, the
political, economic, social and other related circumstances have greatly changed. The
case law material on the provisions of the Penal Code has multiplied. The
Constitution guaranteed fundamental rights to the citizens of India and also laid down
directive principles of State policy. Since then the implementation of five years plans
has led to unprecedented growth of industrialisation in India. Indian parliament has
enacted a large number of laws in various fields. It will be the greatest blunder to
think that the conceptions of crime and punishment have not changed since 1860,
when the Penal Code was enacted. Within a period of last 120 years, i.e.; from 1860
to 1980, the Indian Penal Code was amended 58 times by the legislation. Those
sections which are extremely precise must be properly redrafted. Apart from this, it is
of great importance to reconsider the theory of punishment and to introduce a
reformative element into it.

IX. THE OTHER NOTABLE CRIMINAL LAWS

 Besides the Indian Penal Code, 1860 many other statutes have been enacted to control
various kinds of other crimes notably white collar crime, crimes against women and
children, economic offences and against national security. Notable among these are
some of the following Acts :
 Anti-Hijacking Act, 1982
 Cable Television Networks Act, 1995
 Explosive Substances Act, 1908
 Indecent Representation of Women Act, 1986
 Official Secrets Act, 1923
 Prevention of Food Adulteration Act, 1954
 Scheduled Castes and Scheduled Tribes Act, 1989
 Untouchability Offences Act, 1995
 Wild Life Protection Act, 1972 ; etc.

X. CONCLUSION
The essential object of criminal law is to protect society against criminals and law-
breakers. For this purpose the law holds out threats of punishment to prospective law-
breakers as well as attempts to make the actuals offenders suffer the punishments for
their crime.