Analysis of the origin of criminal law in India:

Theories of crimes and punishments

Introduction

Man has always had a sense of morality, even if it wasn't termed that. A man's conscience
was the rudder that was used to distinguish between good and bad. Society did not just show
up and determine what was right; for some, it was God-given; for others, it was what society
had considered, argued, and chosen, and only that would consist of good and wrong. As
history demonstrates, there has always been a sense of need for punishment or reward based
on the behavior. Since time immemorial, the law of 'an eye for an eye, a tooth for a tooth' has
been applied to offenders. Whether we look to the Mosaic rules, Sharia law, or Vedic
writings, allowing wrongdoing to go unpunished is never supported in any of them. Justice
was and continues to be a virtue that is central to human life and society.1

Religious leaders in mediaeval India attempted to convert Islam into a law-based religion, but
the rulers, as custodians of justice, formed the Sharia, a court subservient to their sovereign
power. The monarchs were required to be submissive to the Sharia in theory, and history
records instances where sovereigns willingly surrendered to the Qazi's judgment. During the
Mughal era, the secular judge was referred to as Mir- adl. On behalf of the Emperor, he
served as a judge. He was expected to conduct independent and personal investigations. He
was also in charge of carrying out qazi's orders. Emperor Akbar also selected two officers,
known as tui-begis, to oversee the law's enforcement and set a small pay for them. The
similar method remained in use until the British acquired control of India.

The Indian Penal Code, 1860, is the country's main criminal legislation. It was enacted as a
statute in 1860. It took effect on January 1, 1862, and replaced the many rules and regulations
governing criminal law in British India. However, the origins of criminal law may be traced
back to Manu, the great lawgiver who drafted a comprehensive code that included not only
legal laws, but also a thorough distillation of the people's religion, philosophy, and traditions
of the time.2

1 “Brief History of Law in India” The Bar Council of India.” The Bar Council of India, http://www.barcouncilofindia.org/about/about-
the-legal-profession/legal-education-in-the-united-kingdom/.
Review of literature

 Dr.Reshma Umair. “DEVELOPMENT OF CRIMINAL LAW IN INDIA.” 24 Dec.

2017, pp. 229–235

Here in this research paper the author has discussed about the how the judiciary was there in
the ancient India, next how the criminal justice was worked in the ancient India, sultanate era,
and mughal era. Also the author discussed about the silent features of Muslim law and also
the defects of it. And also the codification of the laws.

 EMMANUEL MELISSARIS. “Chapter 16.” The Oxford Handbook of Criminal Law,

edited by Markus Dirk Dubber and Hörnle Tatjana, Oxford University Press, Oxford,
2016, pp. 355–378.

The oxford handbook of criminal law is published by the oxford handbook online. This book
deals with various aspects of criminal law, including its relationship to a wide range of
disciplines such as philosophy, sociology, and technology. In this book the chapter “theories
of crime and punishment” written by Emmanuel Melissaris. The key concerns for the
justification of criminalization and punishment in the framework of criminal law are
examined in this chapter. It specifically evaluates whether there is a set of acts (or omissions)
that supports the usage of the term "crime." It begins by examining which sorts of theory are
best for comprehending and grounding criminalization and punishment, concentrating on
three categories of theory: ideal, situated, and political constructivist theories. The focus then
shifts to the basic problems that theories of crime and punishment must address: what
constitutes a crime, what it means to be accountable for one, why it is important to respond to
crime, who may respond to crime, and how to respond to crime. Retributivism, lex talionis,
utilitarianism, and consequentialism are among the concepts discussed. The chapter also
considers several significant approaches to the legitimacy of criminalization and punishment
in post-Enlightenment Western philosophy.

 K D Gaur. “Chapter 7.” Criminal Law-Cases and Materials, 9th ed., vol. 1,
LexisNexis, Gurgaon, Haryana, 2019, pp. 1-3, pp. 47 & ,pp. 282–290.

2 K D Gaur. “Chapter 7.” Criminal Law-Cases and Materials, 9th ed., vol. 1, LexisNexis, Gurgaon, Haryana, 2019, pp. 1-3, pp. 47 & ,pp.
282–290
In the first chapter of this book is Indian penal code outline, here in this chapter the author
briefly explains about the criminal law in ancient India, mohammeden criminal law and also
the criminal law in modern India. In the chapter 7 “Punishment”, the author in this chapter
discussed about meaning, aims and objects of the punishments. The author also discussed
about the theories of punishments and the theories of crime.

Research question

 What is the history of criminal law in India?

 How was the criminal law dealt in ancient India, medieval India, in colonial India and
now in present India?
 What are the different theories involved in crime and punishment?

Methodology

The research methodology is primarily based on secondary sources such as articles, journals,
and other online sources. Additionally, considering the current pandemic situation all the
information and sources collected are online based.

Scope

Through this research paper we will come to know about how the criminal law is originated
in India and how it has evolved till date.

Chapterization

Chapter 1: Introduction

Chapter 2: Criminal law in ancient, medieval India and how it was in this modern period

Chapter 3: what are the different theories of crimes and punishments?

Chapter 4: conclusion

Bibliography
 Srishti John. “History & Evolution of Criminal Law in India.” Law Times Journal, 7
Sept. 2020, https://lawtimesjournal.in/history-evolution-of-criminal-law-in-india/.
 “Brief History of Law in India” The Bar Council of India.” The Bar Council of India,
http://www.barcouncilofindia.org/about/about-the-legal-profession/legal-education-
in-the-united-kingdom/.
 Dr.Reshma Umair. “DEVELOPMENT OF CRIMINAL LAW IN INDIA.” 24 Dec.
2017, pp. 229–235.
 EMMANUEL MELISSARIS. “Chapter 16.” The Oxford Handbook of Criminal Law,
edited by Markus Dirk Dubber and Hörnle Tatjana, Oxford University Press, Oxford,
2016, pp. 355–378.
 K D Gaur. “Chapter 7.” Criminal Law-Cases and Materials, 9th ed., vol. 1,
LexisNexis, Gurgaon, Haryana, 2019, pp. 1-3, pp. 47 & ,pp. 282–290.

By
Mukilan P
BCO200027
B.Com.L.L.B
TNNLU