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History of Criminal Law Procedure and Criminal Justice Reforms in India

The Sumerian people from what is now Iraq produced the earliest known example of a written set of criminal laws. Their code, created around 2100-2050 BC, was the first to create a distinction between criminal and civil wrongdoings. Civil law governs disputes between two or more private parties (modern examples include contract disagreements and divorce proceedings), while criminal law covers cases initiated by the state or federal government against an individual that has harmed another person or the general public in some way.

In Europe, one of the earliest documents that highlights criminal law emerged after 1066 when William the Conqueror, the Duke of Normandy, invaded England. By the 18th century, European law began to specifically address criminal activity and the concept of trying criminals in a court room setting began to develop. The English government created a system known as common law, which is the process that establishes and updates rules that govern a group of people.

Common law covers both civil and criminal matters, and works through the creation and continual revision and expansion of laws by judges as they make rulings on legal matters. These rulings become precedents to help determine the outcomes of future cases.

Following the voyage of Christopher Columbus in 1492, Europe began to establish colonies in the Americas. British Common Law regulated the developing North America until the outbreak of the American Revolution.

By the end of the war, America had become an independent nation, and adopted the United States Constitution. The Constitution, known as the supreme law of the land and officially ratified in 1789, established the judicial branch of the government. The judiciary borrowed from the English tradition and initiated a common law system which creates and revises the rules that govern the country today.

In modern times, the U.S. system of common laws continues to define what is and is not a crime, and the severity of any offense. Criminal cases brought before the courts are generally separated into three categories: misdemeanors, felonies, and treason. Misdemeanors are lesser offenses settled with fines or forfeiture of property, and some are punishable with a jail sentence of less than one year.

Felonies are far more serious crimes that result in harsher penalties such as being sentenced to a state or federal penitentiary for one year or longer. They include assault cases, drug sales, various white collar crimes and other deeds that are harmful to people or society.

Felony crimes such as homicide may also be eligible to receive the death penalty in some states. Treason is defined as any act that violates allegiance to your own country. Originally this primarily referred to war crimes, but over the years the most common form of treason has become the selling of government secrets to hostile countries.

Criminal law continually grows, and is often subject to change based on the morals and values of the times. The basic purpose of these laws has always been to bring justice to those who have intentionally caused harm to others and to protect the citizens of every country.

Significant events in the evolution of Criminal laws& procedure[1]

2350 BC: Urukagina's Code

This code has never been discovered but it is mentioned in other documents as a consolidation of existing ordinances or laws laid down by Mesopotamian kings. An administrative reform document was discovered which showed that citizens were allowed to know why certain actions were punished. It was also harsh by modern standards. Thieves and adulteresses were to be stoned to death with stones inscribed with the name of their crime. The code confirmed that the king was appointed by the gods.

2050 BC: Ur-Nammu's Code

The earliest known written legal code of which a copy has been found, albeit a copy in such poor shape that only five articles can be deciphered. Archaeological evidence shows that it was supported by an advanced legal system which included specialized judges, the giving of testimony under oath, the proper form of judicial decisions and the ability of the judges to order that damages be paid to a victim by the guilty party. The Code allowed for the dismissal of corrupt men, protection for the poor and a punishment system where the punishment is proportionate to the crime. Although it is called Ur-Nammu's Code, historians generally agree that it was written by his son Shugli.

1850 BC: The Earliest Known Legal Decision

A clay tablet reveals the case, in 1850BC, of the murder of a temple employee by three men. The victim's wife knew of the murder but remained silent. Eventually, the crime came to light and the men and woman were charged with murder. Nine witnesses testified against the men and woman and asked for the death penalty for all four. But the wife had two witnesses which told the court that she had been abused by her husband, that she was not part of the murder and that she was even worse off after her husband's death. The men were executed in front of the victim's house but the woman was spared.

621 BC: Draco's Law

This Greek citizen was chosen to write a code of law for Athens (Greece). The penalty for many offences was death; so severe, that the word draconian comes from his name and has come to mean, in the English language, an unreasonably harsh law. His laws were the first written laws of Greece. These laws introduced the state's exclusive role in punishing persons accused of crime, instead of relying on private justice. The citizens adored Draco and upon entering an auditorium one day to attend a reception in his honour, the citizens of Athens showered him with their hats and cloaks as was their customary way to show appreciation. By the time they dug him out from under the clothing, he had been smothered to death.

399BC: The Trial of Socrates

Socrates was an Athenian philosopher. Socrates was not religious and preached logic. When Athens lost the Peloponesian Wars, conservative Athenians looked for a scapegoat. Three citizens brought an accusation against the 70-year old popular philosopher for allegedly corrupting the youth and for not believing in the gods. He was tried before a jury of 501 citizens that found him guilty on a vote of 281-220. When asked to speak on the proposed sentence, Socrates mocked the jurors and they replied, 361-140, with a sentence of death. Socrates' promoted conscience and his death increased interest in his life and teachings.

1692: The Salem Witch Trials

In 1692, in the town of Salem, Massachusetts, USA, a group of young women accused several other women of practising witchcraft or worship of the Devil. The accusations turned into a judicial frenzy and over 300 people were accused of witchcraft, of which 20 were executed including a priest. The extremity of the penalty turned many against the prosecution of witchcraft. There would be no more witchcraft trials in New England.

1787: The Constitution of the United States of America

The 7 articles of the American Constitution were signed in Philadelphia in 1787 and formed the basis of the first republican government in the world. The Constitution defined the institutions of government and the powers of each institution, carefully carving out the duties of the executive, legislative and judicial branches. The Constitution also declared that it was paramount to any other law, whether federal or state, and it would override any other inconsistent law. The American Constitution served as a model for the constitutions of many nations upon attaining independence or becoming democracies.

1788: Through the Operation of Penal Law, A Country Is Formed

Sydney was the site of the first British settlement on Australia, which had been designated as a prime location as a British penal colony. For fifty years, Britain sent its worst men, who were quickly chained into work gangs and put to building roads and bridges. By 1821, there were 30,000 British settlers in the British commonwealth, of which 75% were convicts.

1791: The American Bill of Rights

With the ink barely dry on the Constitution (signed only four years earlier), American statesmen amended their supreme law by declaring the rights of free speech, freedom of the press and of religion, a right to trial by one's peers (jury), and protection against cruel and unusual punishment or unreasonable searches or seizures. The ten amendments of Bill of Rights became known as the First to Tenth Amendment(s) respectively. The Bill of Rights influenced many modern charters or bills of rights around the world.

1803: Marbury versus Madison[2]

In this case,[3] the Supreme Court upheld the supremacy of the Constitution and stated unequivocally that it had the power to strike down actions taken by American federal or state legislative bodies which, in its opinion, offended the Constitution.

This has come to be known as the power of judicial review.
This case is considered by the legal profession to be the most important milestone in the history of American law since the Constitution.

1945-46: The Nuremberg War Crimes Trial

A special panel of eight judges convened in this German town to try Nazi officers for crimes against peace, crimes against humanity and war crimes committed during World War II. The judges came from the USA, Great Britain, France and the Soviet Union. Twenty-four Nazis were tried and twelve received death penalties (although one defendant, Hermann Göering, committed suicide hours before his execution).

This trial was important as it showed that even in times of war, basic moral standards apply in spite of military law principles which oblige a subordinate officer to obey orders. The true test, wrote the Tribunal, is not the existence of the (superior) order but whether moral choice (in executing it) was in fact possible. The crimes included torture, deportation, persecution and mass extermination, genocide.

In India the development of Criminal Justice Reforms paves its way from the British occupation of the subcontinentOn 31st December 1600, Queen Elizabeth I of England granted a Charter to the East India Company of London to trade into and from the East Indies, in the countries and parts of Asia and Africa for a period of fifteen years.

The provisions of the Charter of 1600 were only in connection with the trade and were not intended for acquisition of dominion in India. The legislative authority was given to the Company in order to enable it to regulate its own business and maintain discipline amongst its servants.

In order to enable the Company to punish its servants for grosser offences on long voyages, the Company secured the First Royal Commission in 1601. Subsequently, the Company was authorized to continue its privileges in perpetuity and some additional powers were given for enforcing martial law after settling at Surat in 1612 the Company approached the Mughal Emperor Jahangir through Sir Thomas Roe, Ambassador of England's King James I, and succeeded in securing a Royal Order called farman in 1618.

The farman conferred inter alia the rights on the Company to establish a factory at Surat; to live according to their religion and law without any interference; to settle disputes as among Englishmen and to have the disputes as between Englishmen and local persons settled through local authorities.

In view of the Charter of the King of England read with the farman of the Mughal Emperor, the legal position at Surat Factory was as follows:
  1. There was no common legal system which could apply to all persons in Surat.
  2. Civil justice was according to personal law of the Hindus and Muslims.
  3. Criminal law followed was the Muslim criminal law.
  4. Englishmen were to be governed by English law.

In order to control the vast area and population of India, the British had revamped the existing criminal justice system of India. They modified the existing laws, passed new laws and introduced new principles. The criminal justice system, as it exists today, was mostly evolved during the British period. The steps taken by the British to establish a well defined and uniform criminal justice system in India are discussed below.

During the Muslim rule in India, the Muslim criminal law had replaced the Hindu law as the law of the State. It was applied and enforced by the courts established by Muslim rulers. Hindu law, however, continued to be enforced by village Panchayats, but it could not be enforced in courts maintained by the State. The then prevalent Muslim criminal law and justice system were allowed to continue by the British not only for the Muslims but also for the non-Muslims as the general law except, however, at Bombay because at the time of its acquisition by the British from the Portuguese it was not under Muslim criminal law.

Illbert describes the circumstances, which made the application of the Muslim criminal law inevitable and the compulsions which rendered the change of the criminal law a must in the following words:
The object of the East India Company was to make as little alteration as possible in the existing state of things. Accordingly, the country courts were required, in the administration of criminal justice, to be guided by Mohammedan law. But it soon appeared that there were portions of the Mohammedan law, which no civilized government could administer. It was impossible to enforce the law of retaliation for murder, of stoning for sexual immorality or of mutilation for theft, or to recognize the incapacity of unbelievers to give evidence in cases affecting Mohammedans.[4]

Reforms In Criminal Law By Warren Hastings

Warren Hastings, Governor of Bengal from 1772 and Governor-General from 1774-85, could observe the defects and inequities of the existing system of criminal law and the machinery of criminal justice. He, however, could not venture to uproot the Muslim criminal justice system and tried to tread a pragmatic path and adopted the device of experimentation with the triple policy of the preservation of the heritage as far as possible, reorganization where inevitable and improvements where inescapable[5].

Regarding criminal jurisdiction, it was stated that the powers of trial and punishment must, on no account, be exercised by any other than the established officers of the Muslim judiciary. Cornwallis reformed the whole system of civil and criminal justice by a method of trial and error. In the judicial system Cornwallis introduced reforms in three phases—in 1787, 1790 and 1793 respectively.

1787 plan- All Europeans who were not British subjects were placed on the same footing in criminal matters as the Indians and the Mofussil Fauzdari Adalats were authorized to try and punish them.

1790 scheme- Robberies, murders and other crimes relating to life and property of the natives were increasing; dacoits and murderers were protected by zamindars; conditions of prisons were highly unsatisfactory; judges and law officers were paid low salaries, persons eager to amass money joined these posts, there was no security to tenure of these posts; cases were delayed on account of collusion between judges and offenders; and there was no uniform standard of imposing punishments.

In 1790 Lord Cornwallis circulated a questionnaire among all the Magistrates with the object of ascertaining the then existing conditions of the criminal justice system. He found that it was most uncivilized and intolerable. He noticed that death sentences, worst and cruel types of corporal punishments and indefinite imprisonment were frequent and numerous and at the same time the most notorious offenders very often escaped without punishment.

He also noticed that the jails were over crowded with large number of criminals and offences such as murders, robberies and burglaries had become endemic. People were perpetually haunted with the fear of insecurity to their life and property.According to Cornwallis two factors contributed to such a state of affairs of the criminal justice system, viz. (i) the Muslim criminal law which was, in the opinion of Cornwallis, against natural justice and humane society, and (ii) defects in the constitution, organization and administration of criminal courts.

Reforms Of Lord Bentinck

Lord William Bentinck as Governor-General from 1828 to 1835 showed keen interest in improving the machinery of the administration of justice and introduced several reforms of great importance. He reorganized and consolidated the whole system of civil and criminal courts. He abolished the Courts of Circuit and in their place appointed Commissioners of Revenue and Circuit to control the working of the magistracy, police, Collectors and other revenue officers.

Because of the combination of three functions in the Commissioners, viz., revenue, police and judicial power to try criminal cases, the work load on them became too heavy. In order to reduce the burden of the Commissioners, in 1831, Sessions Judges were appointed to try cases committed to them by the Magistrates. This became the origin of the district and sessions court.

Law Commissions

As per the provisions of the Charter Act of 1833, the First Law Commission was appointed in 1835. The Commission was required to inquire fully into thejurisdiction, powers and rules of existing Courts and all existing judicial procedure and into the nature and operation of all laws in force in the British territories.

Macaulay, who was a barrister and a member of the House of Commons in England, was appointed as the Chairman of the First Law Commission. The most significant contribution of the First Law Commission was the preparation of draft Indian Penal Code for purposes of codification of penal laws in India.

The Second Law Commission was appointed in 1853 and the term of the Commission was fixed at three years. The Commission inter alia recommended that a body of substantive law as applicable to whole of India was necessary; such a uniform law should be prepared taking English law as the basis; exception may have to be carved out in favour of certain classes; and law should apply to one and all except those who are saved by the provisions.

Subsequently, the Third Law Commission and the Fourth Law Commission were appointed in 1861 and 1879 respectively. These Commissions also recommended the codification of laws in different spheres in India and accordingly a large number of Acts were passed including the Indian Evidence Act, 1872.

The labour of these Commissions, which consisted of eminent English jurists, spread over half a century, gave to India a system of Codes dealing with important parts of substantive and procedural civil and criminal law. The Commissions became powerful instruments which injected English common and statute law and equitable principles into the expanding structure of Indian jurisprudence The practice of appointing Law Commissions to study the prevailing law and procedures is still followed in India.

Codification Of Law

The Draft Penal Code, which was drafted and submitted to the Governor General in 1837, was revised and enacted into law in 1860 by Indian Legislature. The Indian Penal Code based on English principles wholly superseded the Mohammedan criminal law. A general Code of Criminal Procedure followed in 1861 and the process of superseding native by European law, so far as criminal justice is concerned, was completed by the enactment of Evidence Act of 1872.

Organizing The Police

Lord Cornwallis was the first British administrator who tried to improve the police system. He appointed a Superintendent of Police for Calcutta in 1791 and thereafter, extended his efforts to the mofussil. Cornwallis took police powers out of the hands of the zamindars of Bengal, Bihar and Orissa, and ordered, in 1793, the District Judge to open a police station for every four hundred square miles and to place a regular police station officer over it. He was known as the Daroga. The Kotwal continued to be in charge of the police in the town. The revolt of 1857 drew the attention of the Government of India to the urgency of police reorganization.

Accordingly, a commission was appointed in 1860 to study exhaustively the police needs of the government. Its main recommendations were embodied in the Indian Police Act of 1861. The aims of the Act as enshrined in the Act itself were to re-organize the police and to make it a more efficient instrument for the prevention and detection of crime. This Act is still in force in India without any significant change.

Jail Reforms

As the British continued to follow the criminal justice system of the Muslim period for a long time, the jails, as part of the whole system, were administered by the East India Company without any change. As the Company was reluctant to spend money on jails, the condition of the jails was deplorable. In many jails, there was no separation between male and female prisoners by day or night. Up to 1860, the management of District Jails had devolved upon the District Magistrate.

There was no manual of rules or regulations for the guidance of the jail staff. In the presidency of Bombay a simple Code of Rules was framed in 1860 and this was followed by Gaols Rules framed in 1866. In Bengal, the Jail Code was compiled in 1864 which defined inter alia the duties, responsibilities and powers of the various officers in the jails. With a view to understanding the problems in the jails and to bring about reforms, various committees were appointed in the latter half of nineteenth century. A few recommendations of these committees were carried into effect from time to time but the reforms never reached to a satisfactory level. Finally, the Prisoners Act of 1894 was enacted followed by the Reformatory Schools Act of 1897.

The Prisons Act of 1894 provided that convicted prisoners may be confined either in association or individually in cells. It fixed nine hours' labour a day for convicts sentenced to labour. The British appointed another committee in 1919 known as the Indian Jails Committee. As a result of the recommendations of this committee a number of changes were introduced in the rules governing the jail system of the country.[6]

Establishment Of High Courts

The British Parliament passed the Indian High Courts Act, 1861 which empowered the Crown to establish, by Letters Patent, High Courts of Judicature at Calcutta, Madras and Bombay abolishing the Supreme Courts and the Courts of Sadar Diwani and Sadar Nizamat Adalat. The jurisdiction and powers of the High Courts were to be fixed by the Letters Patent. Accordingly, the High Courts at Bombay, Madras and Calcutta were established in the year 1862.

Subsequently, High Courts were established at other places in India. Each High Court was empowered to have supervision over all courts subject to its appellate jurisdiction. With this the number of courts were decreased; the quality of work of the lower courts improved; efficiency of the Judges improved; procedures were simplified and the appellate procedure also became uniform. The Letters Patent also empowered the High Courts to enroll and remove Advocates, Vakils and Attorneys-at-Law. The establishment of High Courts was a significant step in the evolution of the criminal justice system in India.

Federal Court Of India

The Government of India Act, 1935 changed the structure of the Indian Government from unitary to that of the federal type. It laid the foundation for a federal framework in India. A federal Constitution involves a distribution of powers between the centre and the constituent units. Therefore, setting up of a federal court was necessary, and accordingly, as per the provisions of the Government of India Act, 1935 the Federal Court of India was inaugurated at Delhi on 1st October 1937It is pertinent to note that the Federal Court Order-in-Council of 1937 fixed the salary of the Chief Justice of the Federal Court at Rs. 7,000 a month and of other Judges at Rs. 5,000 a month.

They were specially paid high salaries so that they could maintain a high standard of living, befitting their eminent positions. The Federal Court functioned successfully and effectively during the transitional period in Indian history, when there was no written Constitution. It built up great traditions of independence, impartiality and integrity which all were inherited by its successor, the Supreme Court of India, established on 26th January 1950 under the Constitution of India.

End-Notes:
  1. Lehman, Warren W., The First English Law, The Journal of Legal History, Volume 6, May 1985, Number 1, Pages 1-32.
  2. https://www.un.org/ruleoflaw/blog/portfolio-items/turkey-reform-of-penitentiaries/
  3. (at 5 US 137),
  4. Rama Jois History of courts pp.53-54
  5. Chowdari on Criminal Justice Reforms p73
  6. Rama jois ibid p158-159
Written by: Syed Shabaz S, Graduated of BA.LLB (5years) - Legal Counsel, DG Institute Financial Services, Sydney, New South Wales, Australia
Email: [email protected]
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