21 September 2010

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

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


First time 1772 Warren Hastings introduced only one change in criminal law system that was severe punishment for dacoity in Bengal, Bihar and Orissa.
But this law was never used.
Thus in 1772 Warren Hastings did not change anything in the Muslim criminal law system.


1773 - Warren Hasting again created a draft regarding changes in Muslim criminal law system.
He wanted to change the law regarding the relation of murder, willful murder and classification of weapon.
Hastings said that Murder is a murder and there should not be any distinction regarding murder weapon and punishment depending on the nature of weapon.

2ndly Hastings wanted to change the right of kin and relatives to forgive the murderer which encouraged and saved the murders from their crime and punishment.
And also wanted to increase the fine amount to deter the criminals from doing crimes.
Hastings submitted his proposals to the council for consideration and approval but council took no decision.

In 1790 Cornwallis started to change the Muslim criminal law system in India which was defective and helped and saved the criminals.

A regulation passed on December 3, 1790 changed the relation of weapon and murder.
And gave importance to the intention of the murder.
Before this when criminal was punished he got punishment according to which weapon criminal has used to murder the person like stick or poison etc.

This regulation also lay down that the relation be in future debarred from pardoning the offender and that the law be left to take its course up on all persons convicted without any reference to the will of the kindered of the deceased

In cases where the heir pardoned the murdered or claimed dyut instead of Kisa, the trial court was not to pass the sentence or punishment itself but was to forward the record of the trial to the Sadar Nizamat Adalat for sentence.

The governor general in council resolved on the 10th October 1791 that the punishment of mutilation of limbs, or amputation of legs and arms or other cruel mutilation should not be inflicted on any criminal in future instead of such punishment the criminal should be given punishment of imprisonment of 14 years with hard labour if punishment is for cutting of 2 limbs, if it is cutting of 1 limb then punishment should be for 7 years.

On 13th April 1792 the governor general in council laid down that if heirs refused to prosecute the criminal the court of the circuit were to proceed with the trial in the same manner as if the slain had no heir and the Muslim law officers attached to the courts were to render the fatwa on the supposition that the heirs had been the prosecutor and were present at the trial.
Thus it helped to stop the heirs forgiving the criminal for his own personal gains.
The Muslim law did not permit a Hindu to testify against a Muslim accused.

On 27th April, 1792 the governor general in council resolved that the religious tenets of witnesses be no longer considered as a bar to the conviction or condemnation of a prisoner but in cases in which the evidence given on a trial would be deemed incompetent by the Mohammedan law on the plea of the persons giving such evidence not being of Mohammedan religion the law officers of the courts of circuit were to declare what would have been their fatwa supposing such witnesses was Muslim.

Imprisonment during pleasure this type of punishment was very common in that time in Muslim courts which kept criminals in jail forever.
In 1791 and 1792 Sadar Nizamat Adalat reviewed all cases of such imprisonment and they were released who served more punishment than they should.

The Cornwallis code of 1793 reenacted all the above changes.

Regulation XIV of 1797 granted relief to the persons already in prison on account of their inability to pay blood money.
Thus fines should be imposed not for the benefit of private parties but for the benefit of government.

Regulation VIII of 1799 changed the theory of justifiable murder and this regulation changed that and said in all cases of murder the criminal should be given death sentence.
Regulation also provided that it was not to be any justification for a willful murder that the person slain desired the murderer to kill him. In such cases also criminal should be given death.

Regulation LIII of 1803 enacted, stated that to guard against the infliction of any punishment without sufficient evidence of guilt and to maintain the uniform and adequate punishment of offenders when convicted according to the criminality of the offences established against them. This regulation also brought changed in punishment of Robbery crime.

Regulation III of 1805 increased the punishment for the crime of robbery.

Regulation II of 1807 – increased the punishment for perjury and forgery.

Regulation VIII of 1808 – enhanced punishment for dacoity.

Number of changes were introduced in the law not expressly through the Regulation but by requiring references to be made to the Sadar Nizamat Adalat.

By Regulation XVII of 1817, the law relating to adultery was rationalized and modified.
Offence of adultery came under the Hadd type of offence.
And required 4 competent male witnesses to convict the accused person and punishment was stoning or death.
This regulation changed that and stated that conviction for the offence of adultery could be based on confessions, creditable testimony or circumstantial evidence. The maximum punishment to be given for the offence of adultery was fixed at 39 stripes and imprisonment with hard labour up to seven years.
This regulation also laid down that if the Muslim law declared the evidence of a witness inadmissible on grounds which appeared to the judge unreasonable and insufficient this was no longer to be followed the evidence had to be taken and the Islamic law officers had to give their fatwa on the assumption that there was no objection against the witness.

In 1817 the Sadar Nizamat Adalat was given power to convict and sentence an accused acquitted by its law officers.
In 1822 Sadar Nizamat Adalat got power to acquit an accused ignoring fatwa of conviction.

In 1825 women were declared completely exempt from corporal punishment by stripes.

1829 Brought great, great and great Reform in Indian Hindu society.

In 1829 through Regulation XVII the sati system was abolished.
The custom of Sati or burning alive of Hindu Widow 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.
The regulation declared that sati was revolting to the feelings of human nature and was in violation of the paramount dictates of justice and humanity.
The evil of Sati was made a criminal offence in 1830.

Regulation VI of 1832 brought a great change in criminal justice system.
This regulation marked the end of the Muslim criminal law as a general and compulsory system of law applicable to all Muslims and non Muslims alike.
The judge was authorized to avail himself of the assistance of respectable Indians in one of the three ways while conducting a criminal trial.
First the judge could refer the entire case or any point therein to a panchayat of persons who would carry on their enquires apart from the court and report the result to the judge.
Secondly the judge could constitute two or more persons as assessors so that he could obtain the advantage which might be derived from their observations in the examination of witnesses. Each assessor was to give his opinion separately.
Thirdly the judge could employ the Indians more nearly as the jury.
In a case in which any of the above three methods was adopted then the fatwa of Muslim law officer became unnecessary and can be ignored by the judge.
The regulation also provided that if the accused person was not Muslim and he demanded that he should not be tried under Muslim law then it was the duty of the judge to try the case using any one of the 3 methods which are mentioned above.

Thus after the Regulation of 1832 it became optional for the criminal court to seek fatwa from the Muslim law officer.

In 1833 as All India Legislature was created
During 1833 to 1860 few changes were made in the criminal law.

In 1852 Sir George Campbell described the Indian criminal system as follows.

The foundation of our criminal law is still the Mohammedan code but so altered and added to by our regulation that it is hardly to be recognized and there has in fact by practice and continual amendative enactments grown up a system of our own well understood by those whose profession it is and towards which the original Mohammedan law and Mohammedan lawyers are really little consulted.
Still the hidden substructure on which the whole building that is criminal law rests is this Mohammedan law take which away and we should have no definition of or authority for punishing many of the most common crimes.

Bombay Province –
Bombay was not ruled by the Muslim kings.
Thus British administration used personal law of crimes in Bombay.
Section 36 of Regulation V of 1799 enacted that –
To Christians and Parsees the English criminal law was to be applied Thus offenders were to be punished according to three systems of criminal law that is English law, Hindu law and Muslim law.

In 1827 Mountstuart Elphinstone, governor of Bombay enacted a series of Regulations which came to be known as the Elphinsone Code.
The Regulation had only 41 sections and defined and classified the acts and omissions which constituted punishable offences along with the scale of punishment for each offence.
The merit of this Regulation was that it was the first attempt to codify and digest criminal law in India.
This code was used for 30 years until the introduction of Indian Penal code 1860

The time English law was also developing and evolving in England and was changing
In India Supreme Court of presidency followed English law.
That time English law also gave strict punishment in England also example is that for stealing the accused was given death sentence in England.

The above changes in the criminal law system are only bare and brief summary of the amendments introduced by the British administration in the Muslim criminal law before the enactment of the Indian Penal Code in 1860.

English law kept changing as per times in UK and Our Indian law did not change as per times it became static after our Independence.


Suggested Reading –

Part 32 – Indian Legal History - British Rule in India and development law and administration –

 


Suggested Reading –

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



Reality Views by sm –


Tuesday, September 21, 2010

14 comments:

A September 21, 2010  

As usual comprehensive.:)

jamos jhalla September 21, 2010  

This chapter of British legal[IL] history in India needs vied publicity

SG September 21, 2010  

Nice post. Cornwallis is a coward. The British Army surrendered to the Americans in Yorktown, Virginia. The surrender ceremony took place on October 19, 1781. The commander of the British Army, General Cornwallis did not attend the surrender ceremony saying he was not feeling well. He sent his deputy, General O’Hara, to officially surrender.

Lt. General Amir Abdullah Khan Niazi of Pakistan, in spite of all the terrible things done by him, personally surrendered to the Indian Army’s Lt. General Jagjit Singh Aurora in Dacca on December 16, 1971. Niazi fought for his country. He was man enough to come forward and surrender personally. He was not a coward like Gen. Cornwallis.

What did the British do to this coward. Appoint him to be the Governor General of India from 1786 to 1793.

HaRy!! September 21, 2010  

agree with SG... cornwallis was a stupid cowardice felon!!! enuf history with him!

rohini September 21, 2010  

nice ..first time time read smthing about concrete about indian law..thnx

Sat_hi_sh September 21, 2010  

"The Muslim law did not permit a Hindu to testify against a Muslim accused."

WTF ????

"English law kept changing as per times in UK and Our Indian law did not change as per times it became static after our Independence."

Our democracy & judicial system will rank among the worst in any galaxy :x

sm,  September 21, 2010  

jamos jhalla,,
thanks

sm,  September 21, 2010  

SG,,
thanks.
But whatever he may have done but he started the process of reforming Indian law.

sm,  September 21, 2010  

HaRy!!,,
thanks

sm,  September 21, 2010  

rohini,,
thanks

sm,  September 21, 2010  

Sat_hi_sh,,
thanks
yes it is the reality of our system.

Ax,  September 30, 2010  

Thank you for the history of law in India.

I have a query on the criminal law on defamation. Many nations have abolished criminal defamation laws (example: Maldives recently) and civil remedies are considered adequate. Most often criminal defamation complaints are used to settle scores. Can you please write comprehensively on pre-British Indian positions on this, as well as Gandhi's views (being a pacifist). I think Gandhi, or Gandhian thinking, even though Gandhi was a lawyer, did not influence Indian law to any significant extant. Am I right ? Hope to see your coverage on these topics.

sm,  September 30, 2010  

Ax,,
thanks.
I will try to write on this topic of defamation.
thanks for asking.
I agree with you on a point that Gandhi did not influence Indian law.