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Codification And Colonial Control: An Explanation On The Influence Of The British On Criminal Law In British India Leading To The Creation Of The IPC

The path to establishing laws and rules in India was intertwined with complexity characterized by the shaping of historical events and ideological debates. Before the British Rule, Indian laws were governed by the religious sentiments of the Hindus and the Muslims. The establishment of British East India Company was in 1600s with its initial focus on trade that gradually expanded to governing territories, particularly after acquiring the Diwani of Bengal in 1765.

The laying down of rules and regulations or the framing of the laws was introduced in India as a part of the Company's involvement in trade and the like economic activities. The acquisition of Diwani led to a "Dual Government".[1] The dual government essentially was a system where the company entrusted the civil and criminal administration to the local appointees while they turned their attention towards the collection of revenues.

This resulted in questionable actions of the local appointees that voiced out the importance of fairness and justice. In order to tackle these substantial problems of fairness, justice and integrity that came into picture due to the allegations of corruptions and various other crimes, the British Government introduced the Indian Penal Code.[2] The Indian Penal Code, 1860 is one of the most systematic criminal codes developed by the British during their reign in India.

The Indian Penal Code continues to hold its legacy in terms of its historical background, its draft and the legal principles that were laid down in it. The Code had its birth in the year 1860 in India by the Brainchild who drafted the code in the 1830s, Thomas Babington Macaulay.[3] The Indian Penal code with its precision and clarity had a significant influence on countries such as Nigeria, Pakistan, Zimbabwe, Malaysia and Singapore.

These countries impacted by the Benthamite Principles that were entrenched in the laws of the Indian penal Code adopted the same legal framework. The Code also in addition influenced the attempts in the organization of laws of the Great Britain during the late 1800s. This in turn also shaped Criminal laws in the Countries of Canada, New Zealand, and Australia.[4] The Indian Penal Code of the 1860 is one of the important historical marks in the history of India with regards to the evolution and development of Criminal Jurisprudence in India that aimed to embrace the solutions for unfairness, Injustices and partiality.[5]

A Historical Background On Codification: Roots Of Codification In India

July 10, 1833, the parliament in the British India witnessed a fervent address by an ambitious young English Lawyer, Thomas Babington Macaulay with regards to the future administration of British India. Lord Macaulay underscored in his speech that the political processes that took place very influentially in Europe though not in an equitable manner was not a practical system that could be established in India nor was there a possibility to achieve the same.[6]

He further stroked the aspect of how the responsibility of the British colony was to lay down an effective governance system rather than just establishing representative institutions. Macaulay posited that England's one of the most significant contributions to the Indian soil was the establishment of a robust rule of law.[7]

The speech turned into actions, Lord Macaulay embarked on his journey to systemize an Indian legal system. Till then the Indian Legal system was characterized by intricate and complex structures that included the Hindu and Muslim personal laws, regional regulations, Acts of Parliament. The aim of Lord Macaulay was to organize this disintegrated system into a comprehensive legal framework with unity and consistency characterized by orderliness.

Simultaneously, the review of the English Penal law was undertaken by the Royal Commission on Criminal Law. This was a reference point on the imperial context for legal reform efforts. Typically, codification that was discussed within the context of nation-building was found to possess imperial and international dimensions. The British Colonizers of India extracted references from the legal works of a variety of regions that underlined on the existence of interconnectedness of legal developments across distant geographical locations.[8]

There was belief among luminaries such as Jeremy Bentham, Thomas Macaulay, and James Mill that there could be an influence of legal change in England as a result of the codification efforts in the colonies. This influence that was recognized to create a legal change in England was often viewed in a lesser light despite its potential benefits that it could give to the home country.

The notion of the modernization of colonies by the colonizers was threatened by the Indian Legal scenario. For example, Calcutta was founded to be more legally advanced than London that challenged the civilization missions of the colonizers as the colonial powers must bring the advancement to the colonies. This challenged the traditional colonial power dynamics.[9]

Furthermore, the enthusiastic production of the legal codes remained to have a very prominent significance in India that were introduced during the British India in the late nineteenth century underscoring the enduring legacy of colonial legal reforms, even after the post-colonial era of India. Despite England's resistance on Lord Macaulay's idea of codification with the influence of Jeremy Bentham's ideologies, a comprehensive legal framework in India that significantly transformed the Indian legal landscape was created. With this evolution, a question of investment of time and money on learning new laws found its way as a result of excessive legal codes that were produced in the late nineteenth century.

In 1881, a colonial official in the Central provinces even made a remark stating:
"Codes are like arithmetic books which no one is required to learn." Therefore, the roots to a fast yet logically structured codification of laws in India was the discovery by the colonial lawmakers on the aspect of their unwillingness to deal with the same political challenges faced by those lawmakers in their home country. The development of laws in their home country was based on the growth of the civil society and public opinion.[10] The reason for a frequent codification in India was the absence of a democratic environment that made it effective. Lord Macaulay has explicitly stated in his words,

"A code is almost the only blessing-perhaps it is the only blessing which absolute governments are better fitted to confer on a nation than popular governments. The work of digesting a vast and artificial system of unwritten jurisprudence is far more easily performed, and better performed, by few minds than by many. .... A quiet knot of two or three veteran jurists is an infinitely better machinery for such a purpose than a large popular assembly, divided, as such assemblies almost always are, into adverse factions.

This seems to me, therefore, to be precisely that point of time at which the advantage of a complete and written code of laws may most easily be conferred on India. It is a work, which cannot be well performed in an age of barbarism. It is a work which especially belongs to a government like that of India-to an enlightened and paternal despotism."[11]

This is the stepping stone of Codification of laws in British India sowing the seed for the establishment of the Indian Penal Code, 1860.

A Historical Background On The Changes Of Laws In British India: Modifications To The Criminal Law By The British

The British East India Company as a part of the expansion of its colonial rule in India acquired its authority over the department of finances of Bengal. The Company gradually extended its authority over the other branches of government that also included the branch of Criminal Justice. The prevalence of law was essentially Islamic and the penal law was based on Hanafite Law since Bengal was under the Mughal rule.

The British colonizers however could not make amendments to that while they were successful in reforming the judiciary in a way where the Muslim judicial officials remained subordinate to the British Judges. In addition to this, the British as they considered the Islamic law to be very inconsistent and unreasonably lenient commenced their mission on remedying the doctrines that were barriers to the maintenance of law and order and a repugnant to natural justice.[12]

The 18th century reform in the Muslim Laws was the first step to Codification and the legal reformation in Criminal law by the British East India Company. The Islamic administration was constituted the administration of civil and revenue justice by the administrator called Dewani, while Nizamat administered the then military and criminal justice. In 1765, a British officer, Robert Clive secured the declining power of Dewani and established his authority as a civil and revenue administrator.

Following this, the colonizers managed to acquire the administrative control in the same year by a treaty replacing the Nizamat from his Subedar or authority. Despite the Company's expanding power authority over the Islamic rules of administration the authorities Naib Nazim and his Nizamat Adalat resumed their administration of criminal justice over the inhabitants until 1790, when the Company dismissed the Naib Nazim and assumed their authority over the Criminal Justice administration directly.[13]

The hierarchy of Courts under the Nizamat included Nazim, the Supreme Magistrate with the jurisdiction to penalize the capital offenders. The Supreme Magistrate was followed by the Naib Nazim who had the jurisdiction to try non capital offences who was finally followed by the Kotwal. The prevalence of this structure was in the cities and in the towns except for the mofussils or small towns that existed in the older Mumbai, Delhi etc. which had their Zamindars with their own civil and criminal courts in their districts. The authorities of the mofussils were required to report to the capital town only when there were cases that involved death penalty before its execution.[14]

The foremost attempt for reformation of the Criminal Justice system took place post the passing of the Regulation Act of 1773. The Regulation Act, 1773 established fresh courts, that encompassed criminal courts with its existence in each district comprising of a Kazi, a Mufti, and two Maulvis, with a collector and a European supervisor presiding over them ensuring fair and impartial trials. The presiding officers were also entrusted with the responsibility of reviewing criminal cases, capital punishment cases and convictions.[15]

The further reformations were enacted bringing in the introduction of district courts in each region presided by a European Judge who was assisted by experts in Hindu and Mohammedan Law.[16] The establishment of the Appellate courts took place in Calcutta, Dacca, Patna, and Murshidabad, with three judges presiding over them and the inclusion of native experts such as the Kazi, a Mufti, and a Pandit. The Supreme Criminal Court which was in Calcutta was the operator of these courts that was presided over by the Sudder Nizam Adalat.

The framework of the hierarchy of criminal courts that prevailed in the then British India laid the foundation for the present day administration of criminal justice system in India. A notable aspect was the divergence of the system in presidency towns that possessed the presence of Mayor's Courts that was followed by the establishment of the Supreme Court and Justices of the Peace.[17]

The institution of a Supreme Court by the Crown was empowered by The Regulation Act of 1773 that constituted a Chief Justice and three puisne Judges. The complaints against the British subjects residing in Bengal, Bihar and Orissa was the jurisdiction that was granted to this court for the crimes that included misdemeanours, oppression and various other offences. The Charter pursuant to The Regulation Act of 1773 granted the Supreme Court with the entire authority same as the authority of the King's Bench in England.

The charter also provided that the Criminal Justice system and its administration should be done like and in the same manner as the administration of the English courts. Similar Supreme courts like the Supreme Court of Calcutta were established in Madras in 1800 and in Bombay in 1823. This reformation in the system of administration of the criminal justice system subsequently brought in a problem of non-uniformity in laws as the British colonizers started referring and relying to the English laws of Crimes while the criminal courts in the presidency towns were under the obligation to follow their own systems of law.

This period also witnessed another reform by the Cornwallis Government that aimed at improving the criminal justice system and fostering social well-being. A significant change can be traced by the natural reasoning that was discharged by Cornwallis in terms of shift of manner in dealing with murder cases that focussed on the criminal intention or the Mens Rea of the criminal as a result of the reform. Cornwallis perceived it as a rational interpretation rather than a violation of Islamic law. The reform also ensured that the criminal of a murder case is legally handled without any influence of the deceased's family along with the revocation of the option of pardoning the murderer.[18]

The replacement of barbaric act of mutilation as punishment with imprisonment and hard labour was another fruit of one of the reforms that was introduced under the Criminal Justice system in the British India. Unfair treatment was tackled by the efforts to reform the laws of evidence that included revoking the bar of Hindus testifying against Muslims defendants. The reforms paved a way for secular and a more rational approach providing the true essence of a fair and just legal system transcending cultural, religious backgrounds of people in India.[19]

The regulation LIII of 1803 aimed to eliminate discretionary or arbitrary punishments, introducing the specificity regarding punishments for crimes. The following years saw the modifications including the increase of punishments for perjury and forgery, along with exorbitant levels of punishments for dacoity to implement deterrent theory, and the related laws for adultery were rationalized and modified etc.[20]

The formation of Penal Code: The historical steps towards the creation of the Penal Code for India

In the guidance of the then Governor of Bombay Elphinstone, Bombay province became the first province to enact the brief penal code in 1827 for the mofussil. The Muslim Penal laws were finally superseded by the Bombay Regulation that incorporated almost all laws of the Bombay Presidency. The Bombay Code continued its existence until it was further overtaken by the Indian Penal Code. The Bombay code was extremely simple written in the form of a treatise than that of how laws are written in a very concise and a short manner.

The Mohammedan Law lost its recognition after Punjab was annexed in 1844, which was replaced by a short code for the province. The Criminal laws which reformed and enacted was enforced in the other provinces of Madras, Bengal, Orissa, and Bihar along with several other territories that were acquired by the British colonizers.

A single legislature for the whole of British India, the provinces along with the Mofussils was introduced through the Charter Act of 1833 which highlighted the significant step towards the development of criminal law in British India. A Commission was set up with the vision to give Common laws to entire India while certain classes had to exempted from its rules as to particular matters. This Commission came into being when the parliament found that uniformity of laws in India was not an achievable task[21]

Lord Macaulay pointed out that:
"I believe that no country ever stood so much in need of a code of law as India, and I believe also that there never was a country in which the want might be so easily supplied´┐Ż A Code is almost the only blessing- perhaps the only blessing which absolute governments are better fitted to confer on a nation than popular governments."[22]

Post these events, on June 27, 1834 the first law member T.B.Macaulay assumed the charge of his office according to the Section 40 of the Charter Act, 1833. In furtherance to this, a law commission was appointed for the purpose of conducting inquiries into the state of laws that were in force and to prepare report on the same. This Law commission entered into being through the Section 53 of the Charter Act of 1833. Encompassing Lord Macaulay, J.M.Mcloed, G.W.Anderson and F.Millett as Commissioners, a Law Commission was established accordingly, called the First Law Commission in the year 1834.[23]

The directions for the preparations of the Penal Code for India were entrusted with this Commission. T.B.Macaulay drew the instructions for the Commissioner that sharply highlighted on the Bentham's "principles of punishment and his criteria for a code."[24]

The primary vision and the objective of the code aligned with a principle was essentially to replace the overlaps that existed between the Hindu and the Muslim laws and the English made laws with a standard and a Singular law for the entire British Indian Empire. Lord Macaulay stood very strong with his conviction of making a comprehensive code for the entire empire and did away with the idea of just the consolidation of laws.

The following points exhibit the important objectives to form a standard Penal Code for India:
  • It should be more than a mere digest of existing laws, cover all contingencies and "nothing that is not in the code ought to be law."
  • Crime should be suppressed crime with the least infliction of suffering, and allow for the ascertaining of the truth at the smallest possible cost of time and money.
  • Its language should be clear, unequivocal and concise. Every criminal act should be separately defined, the language followed in indictment, and conduct found to fall clearly within the definition.
  • Uniformity is the chief end, and special definitions, procedures or other exceptions to account for different races or sects should not be included without clear and strong reasons.

Macaulay declared, "uniformity where you can have it; diversity where you must have it; but in all cases certainty", with the above mentioned principles in his mind that were a concrete and a practical representation of Bentham's legislative aspirations.[26]

The Emergence of The Indian Penal Code: The Creation Of The Strategic Laws For Crimes In India

The steps for the creation for a Singular Penal code for India became robust and were undertaken in an enthusiastically productive manner by the British legislators. It took over two years as the duration for the preparation of the Penal Code. The submission of the report was finally on 1835 and following that in 1937 the Draft Penal Code was submitted by the Law Commission. The Law commission then received the orders to get the Draft Penal Code printed which was returned to it. The commission printed the Draft code while carefully revising, making notes and corrections to it.[27]

The Government however, rejected the recommendations of the Law Commission and arrived at the conclusion for deciding the means to revise the Code. This recommendation on different steps to revise the code was recommended by the Governor General in council. As a result, the Draft Penal Code was thoroughly revised by the Commissioners C.H. Cameron and D.Eliot as per the references provided to them by the Presidencies.

Subsequent to this a revised report was submitted on July 1846 and a second report on June 1847.[28] It is notable to state that the Draft of the Penal code experienced opposition on a larger level and reservations by eminent personalities or jurists when it was circulated for opinions. It is apt to state in the words of FitzJames Stephen, "Lord Macaulay's great work was far too daring and original to be adopted at once and it is not surprising that the period of gestation was prolonged." In addition, the opinions of the judges of the Supreme Court of the three presidencies, the Advocate General of Madras and other judges and jurists were sought in 1851.

The anxious desire of the Court of Directors in London for the Penal Code to be enacted led them to add a fourth member into the commission that in the end totally comprised of J.P.Grant, Sir Barnes, Peacock, James William Colvile, D. Elliot and U.I. Moffat Willes to send the penal code for revision. After a series of intensive deliberations the committee arrived at a conclusion to recommend to the legislative council that the penal code must form the penal system of law to be enacted for India, which was proposed originally by the commissioners under Lord Macaulay. Peacock, Colvile, Grant, Elliot and Arthur Buller brought in the final and revised penal code that included the acceptance of all the suggestions and alterations that were proposed.[29]

For the very first time on December 1856 the revised Penal code was read in the legislative council and in January 1857 for the second time before it was referred to a select committee after April 1857 for the purpose of reporting. The historical Indian Penal code Bill was published in the Calcutta Supplementary Gazette on January 21, 24 and 28 in the year 1857 post the second reading.[30] The mutiny that broke out and the suppression that took place as a beginning of the independence movement pressurized the political conditions to pass the law for India. So, as a remarkable achievement the Legislative Council of India after receiving the assent of the Governor General in Council finally passed the Indian Penal Code on October, 1860.

The code got its publication in the Calcutta Gazette on October 13, 17 and 20, 1860. It is also to be noted that the enforcement date was postponed to January 1, 1862 with the Amendment Act IV of 1861. This was done envisaging the need to make the citizens, Jurists and administrators aware of the new Penal Code for India.[31]

Conclusion:
It could be evidently observed that "It is customary to speak as if Indian codification had taken its rise with Macaulay, and to regard the Indian Penal Code as his work. Macaulay was unquestionably an eloquent mouthpiece for the principles of codification laid down by Bentham. But he marks only one stage, and by no means the most active and fruitful stage, of the work. The Indian Penal Code was the result of the labours of thirty years, during which it passed through the hands of many distinguished jurists. In the form in which it ultimately became law, it bears more of the impress of the exact judicial mind of Sir Barnes Peacock than of the discursive genius of Lord Macaulay."[32]

The creation of the Indian Penal Code was characterized by sheer amount of conviction to provide India with a uniform system of Penal Laws. Despite all the challenges and the oppositions the commissioners under Lord Macaulay received, them with their unwavering vision to enact the Indian Penal Code, 1860 stood the test of time and have created one of the most profound and comprehensive system of Laws that was able to be applied for the whole of India. This Unity of Laws signified the strategic minds of the British colonizers and their efforts in taking inspirations from various principles and philosophies of laws in the path of creating the impeccable Indian Penal Code of the 1860.

End-Notes:
  1. Sk Ehtesham Uddin Ahmad, Colonial Reshaping Of Criminal Law Before The Code Of 1860, Vol. 73 IHC 553, 553-555 (2012).
  2. Id.
  3. Douglas M. Peers, Codification, Macaulay and the Indian Penal Code: The Legacies and Modern Challenges of Criminal Law Reform, Vol. 55, No. 4 IUP 749, 749 (2013).
  4. Id.
  5. Supra note, 1.
  6. Elizabeth Kolsky, Codification and the Rule of Colonial Difference: Criminal Procedure in British India, Vol. 23 ASLH 631, 631-635 (2005).
  7. Id.
  8. Id.
  9. Id.
  10. Id.
  11. Id.
  12. Information and Library Network, Pre Trial Process- Procuring Attendance of Person and Production of Documents (inflibnet.ac.in) (last visited April 2, 2024).
  13. Id.
  14. Id.
  15. Id.
  16. Id.
  17. Id.
  18. Id.
  19. Id.
  20. Id.
  21. Id.
  22. Id.
  23. Id.
  24. Id.
  25. Id.
  26. Id.
  27. Id.
  28. Id.
  29. Id.
  30. Id.
  31. Id.
  32. Id.

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