08 September 2010

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Part 30 - Indian Legal History – Criminal law system in India Prior to British Rule , East India Company Rule

Part 30 - Indian Legal History – Criminal law system in India Prior to British Rule , East India Company Rule


Reality views by sm –
Wednesday, September 08, 2010

Criminal law in India -

Before the rule of British king on India, India was ruled by the Muslim kings who were also outsiders.
As king was the Muslim, Muslim criminal law was the law of the land for administration of criminal justice in India.



More than 100 years East India Company [ Period of Diwan ] also did not change the criminal law system in India, they also followed Muslim criminal law.

Criminal law in India started to change with the introduction of Indian Penal Code in 1860.
Please Note – Today also in 2010 we are using same Indian Penal Code.
An Indian Penal Code is a law given by a king for his slave nation called as India.

Let us Understand Muslim law in India between 1772 to 1860-

The judge under Islamic Law is not bound by precedents, rules, or prior decisions as in common law exception is Hadd.

When we talk about the Muslim law please understand that in Islam God is law and law is God , Islam does not have theory of Separation of church and state .

So Muslim criminal law in short we can say is that nothing but obeying the Quran , surrendering to the will of Mohammad , God.

Islamic law is known as Shariah Law, and Shariah means the path to follow God's Law.
The first and primary element of Shar'iah Law is the Qur’an.

The second element of Shar'iah Law is known as the Sunna, the teachings of the Prophet Mohammad. The Sunna contain stories and anecdotes, called Hadith, to illustrate a concept.

The third element of Shar'iah Law is known as the Ijma.
The Muslim religion uses the term Ulama as a label for its religious scholars.
When the Ulama's reach a consensus, agree on an issue, it is interpreted as Ijma.
In Muslim law Qazi performed all the duties of Judge.
Qazi or Kazi means Judge.

The traditional Muslim law is classified under following 3 categories.

1.Crime against god - includes crimes such as apostacy, drinking intoxicating liquors, adultery etc.

2.Crime against sovereign – includes crime such as theft, highway robbery, robbery with murder etc

3.Crime against private individual – includes crimes such as murder, maiming, offences against human body.

As Per Muslim law there are 4 types of punishments which are given for the various types of crime.
1.Hadd

2.Tazir

3.Kisa or Qisas - meaning retaliation, and following the biblical principle of "an eye for an eye."

4.Diya or Diyut

Let us understand Hadd Punishment –

Hadd crimes have fixed punishments because they are set by God and are found in the Qur’an. Hadd crimes are crimes against God's law and Tazir crimes are crimes against society.
Hadd means limit or boundary
Hadd crimes are the most serious under Islamic Law, and Tazir crimes are the least serious.

When offence or crime of person was against god or against public justice, anti social and anti religious that time this according to the Hadd Principal the punishment was given to the criminal.

In this type the punishment was fix and no one was allowed to increased or decrease or change the punishment.

Once the crime was proved then punishment was given without any change. The judge did not enjoy any discretion. No judge can change or reduce the punishment for these serious crimes.

Only eye-witness testimony and confession were admitted.
For eye-witness testimony, the number of witnesses required was doubled from Islamic law's usual standard of two to four.
Moreover, only the testimony of free adult Muslim males was acceptable.

The purpose behind Hadd Punishment is to deter people; people should fear the law to do act against the religion or God or go against Quran.
Example of Punishment –
1. Death by stoning - crime zina that is illicit intercourse. The pregnancy of an unmarried woman can be sufficient proof against her.
2. Death by scourging - crime zina that is illicit intercourse
3. Amputation of limb like hand or leg or limbs - crime theft , cut
4. flogging
5. stripes - for falsely accusing a married woman of adultery eighty stripes

Any person who is not liable for the hadd punishment for zina because of any of the limitations may still be prosecuted under the criminal law of discretionary punishment that is ta'zir.


Let us understand Tazir Type of Punishments – when offence is against the sovereign –
Tazir punishment corporal punishment up to death
Under the principal of Hadd ,kisa or diya very few offences or crimes are mentioned thus Tazir becomes very important in the Muslim criminal law system and majority nearly all crimes come under Tazeer.

Indirectly every crime came under the Tazir , if judge found that he can not punish the criminal using the hadd or kisa the he punished that criminal using Tazir doctrine.
Tazir means discretionary punishment.
Judge was free to decide the nature of punishment [scope for corruption]
Punishment is not fixing in this type of crime.

These punishments include imprisonment, exile, and corporal punishment, boxing on ear, humiliating in public place.

Tazir Punishments change as per place and state , they are not written or codified.
Siyasatan means exemplary punishment imposed on habitual offenders or dangerous characters.

For which crime punishment was given according to Tazir below are few examples
• Use of abusive language
• Forgery of deeds
• Forgery of letter
• Bestiality
• Sodomy
• Offence against human life
• Property disputes
• Public peace and tranquility
• Decency
• Morals
• Religious crimes

Let us understand Kisa or Qisas and Diya Type of Crimes and Punishment-
Kisa or Qisas - meaning retaliation, and following the biblical principle of "an eye for an eye."
A Qesas crime is one of retaliation.

If you commit a Qesas crime, the victim has a right to seek retribution and retaliation. The exact punishment for each Qesas crime is set forth in the Qur’an.

If you are killed, then your family has a right to seek Qesas punishment from the murderer.
Punishment can come in several forms and also may include "Diya."
Diya is paid to the victim's family as part of punishment.
Diya is form of restitution for the victim or his family.

The Qesas crimes require compensation for each crime committed. Each nation sets the damage before the offence and the judge or Qazi then fixes the proper Diya.
The family also may seek to have a public execution of the offender or the family may seek to pardon the offender. Traditional Qesas crimes include:

1. Murder (premeditated and non-premeditated).
2. Premeditated offences against human life, short of murder.
3. Murder by error.

One of the problems in Muslim law is that when murder was committed it was the duty of the victim’s family to demand justice .
State did not interfere until the victim’s family demanded justice , state treated it as a personal matter , private matter Murder is not the matter of state, suo motto state does not take any action against accused person.

Now you will understand the problem with Muslim criminal law system with this little story,
Suppose there are 4 brothers from 4 wives , one of the brother Kills the father and 2 brothers to get half share of the property .
Now there are only 2 brothers left behind , one brother who should complain about murder accept the diya or kisa punishment or he pardons other brother who murdered his father and 2 step brothers.
In this case both brothers now enjoy the half share of property.

This is actual case which happened in 17th century.
Five men were convicted in case of robbery and murder .
But later complainant pardoned them all for just Rs.80.
Thus they did not any punishment and with paying Rs.80 their crime became legal.

The price of Human life was very cheap and still today we Indians behave in same manner we have no value for life.

As per Muslim law if one of the heirs of the murdered person pardoned the murderer or compounded with him by accepting diya then all other heirs were debarred from demanding kisa , they were entitled merely to their share of the money . This money is many times called as blood money.

No Muslim could be convicted capitally on the evidence of a non Muslim.
October 3, 1791 in case of keetoo choudhury and kaloo choudhury in this case chief kazi declared that as their names did not indicate whether they were Hindus or Muslims if they were Muslims the evidence of Hindus against Muslim could not be allowed or considered but if they were Hindus they deserved severe punishment


This type of cases are mentioned in the old records like Cornwallis Minute of 1790

Thus to earn more money or because of fear , majority times heirs pardoned the murderers and criminals.
So if you are powerful poor people were unable to get justice.http://www.blogger.com/img/blank.gif

Continue -

Suggested Reading –

Part 1 to last Part 38Complete Indian Legal History from year 1600 to 1935



More Reading –

 
Part 29 - Indian Legal History – Importance of Privy Council or King in council towards Indian Legal History –


Suggested Reading –

Part 31 – India Legal History – Changes and development in criminal Law system in India from 1772 to 1860


17 comments:

A September 08, 2010  

Exhaustive...well researched.

(I sent you an email. Did you get it?)

Samvedna September 08, 2010  

You write your post in such an exhaustive way thast I wish I could write my topics that way so that I could make them understand my point of view..

sm,  September 08, 2010  

A,,
thanks.
just now saw your mail

sm,  September 08, 2010  

Samvedna,,
thanks

Sat_hi_sh September 08, 2010  

Each time when i visit ur blog am left with lots of info to learn ,well compiled & keep em comin..

cheers !!!

R. Ramesh September 08, 2010  

very interesting post this too...thanks buddy

sm,  September 08, 2010  

Everymatter,,
thanks

sm,  September 08, 2010  

Ordinary_Indian,,
thanks

sm,  September 08, 2010  

Sat_hi_sh,,
thanks

sm,  September 08, 2010  

R. Ramesh,,
thanks

Latha Nair September 10, 2010  

Lots and lots of info..
wonder how you manage to
do such a thorough job
every time!

sm,  September 11, 2010  

Latha Nair,,
thanks

Anonymous,  August 11, 2015  

Hey, thank you. it was useful for my assignment!

Raghav Sodhi May 12, 2016  

this is brilliant
I can't thank u enough