Maharashtra National Law University Mumbai

Development of the Criminal Justice System in India

Legal Constitutional History

Submitted By

Triya Ghosh

Roll No: 2022 105

First Year, B.A. LL. B (Hons.)

Section B

Submitted To

Prof. Amit Kumar

Submitted on 24/04/2023
Table of Contents

Introduction................................................................................................................................1

Aims and Objectives..................................................................................................................2

Chapterization............................................................................................................................2

1.1 Criminal Justice in the Vedic Period............................................................................2

1.2 Criminal Justice during the Muslim Rule....................................................................4

1.3 Arrival of the British...................................................................................................5

1.4 Codification of Criminal Law: Why was it carried out?.............................................6

Conclusion..................................................................................................................................8

Introduction

In the long and tiresome history of India, with several rulers of various ethnicities, the Indian
population has wound up with a legal system full of nuances and complexities. The
development of criminal justice in India is a fascinating and complex topic that spans over
several centuries. India's legal and constitutional history is a rich tapestry of diverse cultures,
religions, and legal traditions that have influenced the country's criminal justice system in
profound ways. The evolution of India's criminal justice system is a testament to the country's
cultural and legal diversity, as well as its resilience in adapting to changing times and
circumstances. The history of criminal justice in India dates back to the Vedic period, when
justice was administered by the king or the monarch. The legal system during this era was
based on the principles of dharma. The Muslim period marked a turning point in the
development of India's criminal justice system. There was a sea change as the Muslim rulers
introduced the concept of Islamic law or sharia.

However, it was during the British era that India's criminal justice system underwent a major
transformation. The British introduced the concept of the rule of law, which meant that
everyone, regardless of their social status, was subject to the same laws and punishments. The
British also introduced a modern legal system, which included the establishment of courts,
the codification of laws.

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Aims and Objectives

1. To study the criminal justice system in the vedic period, Islamic period and after the
arrival of the British.
2. To analyse how this system led to the advent of the contemporary system and what
parts of it are visible to this day.
3. To understand the reasons for codification and analyse its successes and failures.

Chapterization

1.1 Criminal Justice in the Vedic Period

Dharma, as a concept of justice and righteousness, was central to the criminal justice system
in the vedic period. Although not as developed and streamlined as our current justice system,
there was still a framework that punished wrongdoers and compensated those wronged. There
was a time where the concept of the ideal state meant one with minimal governance and no
punishment, people acted according to their dharma1. Following is a quote from a verse that
upheld this idea;

“There was neither kingdom nor the King; neither punishment nor the guilty to be
punished. People were acting according to Dharma; and thereby protecting one
another”

Breach of criminal laws was seen as a crime against the state. Every member of the public
could bring the offence to the King's attention, and the King was obligated to seize and
punish the violator. It was stipulated that the King shall take cognizance of criminal offences
on his own, with or without a complaint from a private person. Any citizen, not just the
person hurt or his relatives, can provide information or file a complaint against an offence
committed by another person. Stobhaka, or informant, was a person who discovered crimes
and reported them to the King on his own initiative. Suchaka, or Investigation Officer, was a
person assigned by the King to detect the committing of crimes.

The dandaniti, or punishment policy, was one of the most exhaustively discussed themes in
ancient India because it was so closely related to state management. Manu emphasised the
significance and value of punishment, stating, "Punishment alone controls all created beings,
1
Glucklich, A. (1982). Karma and social justice in the criminal code of Manu. Contributions to Indian
Sociology, 16, 59 - 78.

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protects them, and monitors into them while they sleep." According to Manu, Yajnavalkya,
and Brihaspati, there were four types of punishment in ancient India: admonition, censure,
fine, and corporal punishment.2 Corporal penalties included the death penalty, amputation of
the offending limb, branding some mark on the offender's head signifying the offence done,
shaving the offender's head and parade him through public streets. There was hierarchal
allocation of punishments that was based upon the varna system. Those of lower castes were
subject to more subjugation and harsher forms of punishment.3

The contemporary system does not uphold such violent and barbaric forms of punishment but
rather relies on the Jail system as a restitutive and reformatory system. The aim of the current
system is not to make wrongdoers suffer, but rather make them repent and reform into better
citizens.

Policing System

The first state police force can be dated back to the pre-Mauryan period. Its entire evolution
is documented in Kautilya's Arthashastra. In ancient India, the police were separated into two
wings: normal police and secret police.4 The regular police were divided into three tiers: the
Pradesta (rural) or Nagaraka (urban) at the top, rural and urban Sthanikas in the middle, and
rural and urban Gopas at the bottom.

The founding of the state jail, was also in the same period. It was explained that a jail be built
in the capital, with separate quarters for men and women, and that it be guarded, similar to
contemporary jailing systems. It was also mandated that the inmates be put to useful work.
The policy of upholding a compassionate stance towards those found guilty of crimes and
sentenced to imprisonment has also been codified in ancient Indian law. Thus, we see a
change from the times of dharma being the supreme law to a gradual shift towards
codification and a reformatory and rehabilitatory system being envisaged.

2
Tripathi, D. R. (2018, January). Evolution of criminal justice system in ancient india. International journal of
multidisciplinary research and development, 5(1), 153-157.
3
Supra, note 1
4
Law, T. I. (2022, January 23). Criminal law development in ancient india. The Indian Law.
https://theindianlaw.in/criminal-law-development-in-ancient-india/

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1.2 Criminal Justice during the Muslim Rule

During the Mughal Empire, the courts followed a methodical judicial procedure. Two Muslim
codes, Fiqh-e-Firoz Shahi and Fatwai-i-Alamgiri, governed the judicial process. Evidence
was divided into three categories: full corroboration (Full corroboration was always chosen
over other types of evidence by the court.), single-person evidence, and admission
comprising confession. Muslim criminal law divides crimes as those against God, crimes
against the King, and crimes against private individuals. 5

Since Islam as a religion is based on the holy book, Quran, criminal law and Muslim law in
general emanates from it in the form of the Shariat law. The king was the highest judicial
authority and he formed the highest court; he decided the cases in the Deewane Khas. Unlike
the traditional courts and the methods employed in the contemporary post-colonial society
there were no prosecutors or jury. Cases were treated as an issue between two individuals.

The Islamic punishments were also just as barbaric as those of the vedic period -- the
punishment was impossibly high and the standards were also implemented to a very high
degree. Punishments like amputation of hand, stoning to death, a public hanging etc.
Punishment was exact retribution wherein the Muslim law followed an eye for an eye
concept.6 Trial by ordeal, as prevalent during the Hindu period, was forbidden during the
Muslim period.

For the first time, police regulations were made in the Mughal period. These reforms were
created by the likes of Akbar and Sher Shah Suri. The rural and urban police were separate. In
cities and towns there were Kotwals. They took charge of the jails, and rounded up prisoners
to ask them about their charges. In the rural areas the panchayat system was involved in the
administration of justice. Prisoners awaiting trial would be in jail and the executive had their
duties laid out. Prisoners were often put to work. The contemporary system is also very
similar however the policing system is not different for urban and rural areas, it is just a form
of decentralisation that is practiced today.

The concept of repentance is also common in Islamic law. The law postulates that a mistake
can be overcome by repenting to God. However, this was a matter between God and the
individual themselves thus requiring no actual implementation.

5
History & basis of muslim criminal law. (2021, October 13). https://legalbonanza.com/blog-articles/history-
and-basis-of-muslim-criminal-law/cid5485624.htm
6
Peters, R.A. (2006). Crime and punishment in Islamic law: theory and practice from the sixteenth to the
twenty-first century.

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During the long span of the Muslim rule in India, the criminal justice system became
increasingly more systematised and gained significant ground especially in the Mughal
period.

The arrival of the British after this further modernised the system, and on the other hand,
subjugated the Indians through criminalisation of several indigenous activities and groups.

1.3 Arrival of the British

There were several problems with the administration of justice in British India prior to
codification. Among the most troublesome "vices" was widespread legal ambiguity and
uncertainty. As previously stated in this article, the imperial courts in India enforced a wide
range of laws, some of which intersected. Local court officers struggled to determine what
legislation to apply not just because there were so many different sources, but also because
regional governments did not routinely produce entire digests of existing statute law. This not
only contradicted legal decisions, but also left magistrates and judges with an undetermined
and vast scope for referencing precedent and making conclusions. To make matters worse, the
majority of the aforementioned judicial officers were fairly young and had no prior legal
training or experience.

The democratic or consensual paradigm is by definition inapplicable under a colonial state;

laws are imposed on a subject population by the home country. When enacting new
legislation, an enlightened colonial authority may attempt to take into account the views of
the local people (or at least some parts of that population). Taking public opinion into account
was a fundamental part of a liberal legal system; nevertheless, in the framework of a colonial
government, such considerations were at the discretion of the rulers. Interest in understanding
the views of the local populace, if any, may stem not so much from democratic philosophy as
from pragmatic reasons, namely the desire that the law be approved and executed in a timely
manner.7

Despite these advancements, the British legal system was frequently chastised for being
biassed, notably against the Indian people. For small offences, colonial authorities frequently
enforced harsh punishments, including as transportation and imprisonment, on Indian
residents, although British officials were frequently treated leniently.
7
Sebba, L. (1999). The creation and evolution of criminal law in colonial and post-colonial societies. Crime,
Histoire & Sociétés / Crime, History & Societies, 3(1), 71–91. https://doi.org/10.4000/chs.936

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1.4 Codification of Criminal Law: Why was it carried out?

"Unless, therefore, we mean to leave the natives exposed to the tyranny and insolence of
every profligate advent who may visit the east, we must place the European under the same
power which legislates for the Hindus” – Thomas Macaulay on, legal uniformity.8

Thomas Macaulay was the most important and instrumental people, who began the
codification of the Indian criminal laws, in form of the Penal Code. The British task was to
provide good governance to a people to whom they could not provide free governance. The
rule of law was at the heart of Macaulay's excellent but not free government--what he
considered as one of England's greatest gifts to the people of India.

Macaulay sought to unwind the confusing system created by the several functionaries at play
at that time. Not only were there the ancient Indian laws, Islamic laws and other indigenous
systems being followed, but there were also codes and regulations drawn up by the East India
company that added a layer of confusion. His grand ideas of codification and a unified spirit
of law emanated from the scholar, Bentham. He admired Bentham for systematising
jurisprudence. 9

Codification has mostly been an endeavour that was successful in colonies as the codifiers
did not face any backlashes like public opinion and political concerns. Even the few voices
against the British despotism at the time were not unified back in 1860. Thus, like many have
noted, codification often works best in undemocratic societies. 10

Neither the company nor the imperialists were interested in ‘civic good’ for the Indian
populations. Rather, the move towards codification was more so to end the reports of brutal
violence, and secure a more legitimate claim over the plantations. Most of the breaches of
peace in the villages were conducted by the brute force of the European planters. It was seen
as a vital problem and thus laws were to be codified so they could be applied onto them.
British criminality in India not only constituted an imminent political challenge to colonial
authority--administrators in London were not looking forward to another American

8
Hansard's, 3d ser., vol. 19, 527. the class biases this position, see Harald Fischer-Tine, "Britain's Other
Civilizing Mission: Class P European 'Loaferism' and the Workhouse System in Colonial India," in Low and L
Europeans: White Subalterns in British India, 1784-1914
9
Kolsky, E. (2005). Codification and the rule of colonial difference: Criminal procedure in british india. Law
and History Review, 23(3), 631–683. https://www.jstor.org/stable/30042900
10
Supra note 7

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Revolution--but it also contradicted the colonisers' superior image and prestige 11. In his
"Notes on the Indian Penal Code," Macaulay wrote in detail about "how desirable it is that
the national personality should stand very high in the estimation of the inhabitants of India,
and how much that character would be reduced by the continual exhibition of Englishmen of
the worst description, placed in the most deplorable situations, stigmatised by courts of
justice." In pushing for steps to reduce European criminality, Macaulay emphasised the need
of every Englishman serving as the exact embodiment of the English government itself.

However, without a substantive criminal code to guide them, efforts to change criminal
procedure legislation were immobilised. Many Europeans believed that if they were brought
before the mofussil courts, they would be governed by Islamic criminal law, which they saw
as "a barbarous and proselytising law unsuited to Christian and civilised" people.

Fig 1.1 is an extract from the same amendment

12

(sourced from the parliament’s website) where the

judges are conflicted on whether to include
indigenous populations as colonial subjects

When it was first approved in 1861, the Code of

Criminal Procedure recognised the legal supremacy
of "European-born British subjects" by granting
them particular benefits such as the right to a jury trial with a majority of European jurors,
limited punishments, and amenability only to British judges and magistrates. These fiercely
guarded "privileges" or "rights," as they were alternatively described, made the law both a
symbol and a marker of imperial power: genuine in that European subjects were given special
privileges that differentiated them from Indian subjects, figurative in the work they did to
maintain and display European and prestige.13

Previously, the civil law and personal law spheres were drawn out by Warren Hastings, and
thus the Indian population has reservations about the creation of a civil procedure code. They
did not have the same feelings of reservation about the criminal procedure code as it was seen

11
Supra note 9
12
Legislative Council Debates (1883), https://eparlib.nic.in/bitstream/123456789/782545/1/ilcd_9-march-
1883.pdf
13
Supra, note 4

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as a more universal phenomenon. Criminal codification would meet with the least resistance
and thus was the one that was enacted first of the three codes14.

Macaulay was an extremely progressive jurist who was well suited to codification. Many of
Macaulay's ideas showed his enlightened rationality. He was opposed to the death penalty,
corporal punishment, and the use of law enforcement to limit civil liberties. He was
optimistic about the possibility of Indian self-determination in the future. While underlining
the importance of British exports and "the diffusion of European civilisation," he believed
that it would be "far better for us if the people of India were well-governed and independent
of us, rather than ill-governed and subject to us." His bid for equal punishment and equal
application of the criminal procedure was finally acceded to in 1882, however only partially.

Although Macaulay had imported various new ideas to the Indian legal system, one cannot
ignore the obvious imposition of superiority and ignorance of the local systems. Despite the
concession to "public opinion" and the adoption of several superfluous legal notions,
Macaulay was ultimately imposing a foreign (English-based) legal system on an indigenous
population. He was, of course, oblivious of the subsequent contemporary sociological views
that call into question both the practicalities and the ethics of imposing so-called "advanced"
legal systems on so-called "backward" peoples. While he did believe in the superiority of
western values and education, the legal rules he intended to enforce were, as previously
stated, seen to be universal rather than culture-specific by him (following utilitarian
philosophy).

Conclusion

While each period in India's legal and constitutional history has contributed to the evolution
of the country's criminal justice system, they have also had their share of shortcomings and
failures.

The justice system during the Vedic period was built on the notion of dharma, which
emphasised the significance of fairness and righteousness. However, punishment for crimes
was frequently severe and violent throughout this time period, and the legal system was
essentially hierarchical, with the king or monarch having the final say in matters of justice.
Because of these considerations, the system became highly subjective and prone to abuse.

14
Leon Radzinowicz, A History of English Criminal Law and Its Administration since 1750 (London: Stevens,
1948

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During the Muslim period, the concept of Islamic law was developed, emphasising the
significance of justice, fairness. On the contrary, the application of Islamic law to non-
Muslims was frequently discriminatory, and the system favoured the rich and influential over
the poor and marginalised.

The British era had a profound impact on India's legal system, introducing various measures
such as the creation of courts, the codification of laws etc. The British legal system, on the
other hand, was regularly chastised for its discriminatory nature, favouring British officials
over Indian citizens in matters of justice.

In recent years, the Indian criminal justice system has experienced various obstacles,
including allegations of corruption, delays in justice delivery, and human rights violations.
The system has been criticised of favouring the wealthy and powerful, as well as of
discriminating against marginalised communities and minorities. Despite these weaknesses,
the Indian criminal justice system is evolving and adapting to new problems and conditions.
Efforts are currently being made to reform and modernise the system, including the use of
alternative dispute resolution methods, the use of technology to promote effectiveness and
transparency, and bolstering of human rights protections.