DEVELOPMENT OF CRIMINAL LAW IN INDIA

CRIMINAL LAW IN ANCIENT PERIOD

During a specific period in ancient India, roughly from 1000 B.C. to A.D. 1000, there was a system
in place that governed the social and legal aspects of Hindu society. The key features of this system
included laws that were centered around the welfare of the community. State administration was
carried out by a king and his assistants, a concept that can be traced back to the early Vedic period,
as seen in the Rig-Veda, where the king was referred to as Gopajanasaya or the protector of the
people, responsible for maintaining law and order.

The Hindu legal system was deeply rooted in the concept of Dharma, as outlined in texts like the
Vedas, Puranas, Smritis, and other related works. The Vedas served as the earliest source of
Dharma, with subsequent texts such as the Dharma sutras, Smritis, and Puranas providing
additional guidance. Subsequently the Mimamsa (art of interpretation) and the Nibandhas
(commentaries and digest) also became supplementary sources of law. In cases of conflict between
these sources, the Vedas held the highest authority. There are four Vedas: Rig Veda, Yajur Veda,
Sam Veda, and Atharva Veda, each comprising mantras or hymns (Samhita) and Brahmana.

The Dharmashastras played a vital role in regulating various aspects of human life, including civil
and criminal matters. The Dharma sutras, categorized as Srauta sutras, Grihya sutras, and Dharma
sutras, were instrumental in establishing laws. The most important Dharma sutras were authored
by Gautama, Baudhayana, Apastamba, Harita, Vasista, and Vishnu, making them the earliest
works on the Hindu legal system.

Another significant source of Hindu law was the Smritis, which followed a codification approach.
Legal principles scattered throughout various texts, including the Vedas and Dharma sutras, were
compiled and organized by subject in the Smritis. These texts covered topics such as court
constitution, appointment of judges, procedural law, and more. Notable Smritis included the Manu
Smriti, Yajnavalkya Smriti, Narada Smriti, Parashara Smriti, and Katyayana Smriti.

The Manu Smriti, in particular, stood out for its eighteen sub-divisions of law, encompassing both
civil and criminal matters. Puranas, divided into categories related to Brahma, Vishnu, and Shiva,
also contributed to ancient Indian law.

Kautilya's Arthashastra was another significant source of law in ancient India, emphasizing the
importance of maintaining order and addressing social and criminal issues. The text covered
various aspects of law, including procedures, evidence, criminal investigations, and punishments.
It also provided guidelines for judges and rulers.
In addition to these literary sources, customs and usages within society were considered as part of
the legal framework for administering justice.

The legal system during this period also included a comprehensive approach to punishment
(dandaniti), which was closely linked to the state's administration. Four methods of punishment
were outlined: admonition, censure, fines, and corporal punishment. Corporal punishments could
be severe, including death penalties, limb amputation, branding, head shaving, and public
humiliation. These punishments were sometimes tied to a person's social status (Varna), with
higher social classes often receiving harsher penalties for similar offenses. As time progressed, the
influence of the Sultanate rulers led to changes in the criminal laws and the legal system in India.

CRIMINAL LAW IN MEDIEVAL PERIOD

Kisas or retaliation: The principle of Kisas was ‘a life for a life’, and ‘a limb for a
limb’. Under this head ‘Jinayat’ was included which means offences against the person,
although it was restricted to wilful homicide, maiming and wounding. punishment of
retaliation can be classified into cases of death and cases short of death. Retaliation in cases
of death was considered to be the right of man and it devolved on his legal heirs who
represented him in the exaction of it. But there was one condition to be fulfilled for this
punishment, that the blood of the deceased should have been under the protection of the
law, from permanent residence within the territory of a Muslim state subject to its authority.
The murder of an unprotected non-Muslim, whether by a Musalman or by an unbeliever,
did not permit the retaliation of death. In the case of wilful homicide the culprit was
excluded from inheritance to the property of the victim. Offences against the person, short
of homicide can also be classified into wilful or by misadventure. But unlike the case of
homicide, the instrument used was not the criterion for adjudging whether this offence was
wilful or otherwise, nor according to the Hedaya, was there any difference as regards
punishment whether the destruction of any member of the body was wilful or by
misadventure. Offence against the person short of homicide, which did not incur retaliation
subjected the offender, if the act was wilful, or his Aquila, if the act was involuntary, to the
payment of ‘Arsh’ or the fine of blood in cases short of life. Both Kisas and Arsh for
personal injuries not affecting life, were however, open to composition between the parties;
and the injured person was at liberty to remit the penalty, on the same principles of private
right and satisfaction, which have been stated with respect to the provisions for homicide.

(ii) Diyut or blood-money: Diyut means fine or compensation for blood in cases of
homicide. The punishment of Diyut was an alternative to the punishment of Kisas. Again,
all illegal homicides, excepting wilful homicide of the kind for which retaliation could not
be claimed, would be visited with Diyut or the fine of blood payable by the Aqila of the
offender as well as by the offender himself. In cases of quasi-deliberate homicide,
erroneous homicide, or involuntary homicide, in addition to the payment of the fine of
blood, the offenders were liable to the penalties of expiation and exclusion from
inheritance. But in the case of accidental homicide by an intervening cause no other
punishment was added to the payment of the fine of blood, for the immediate act of
bloodshed in this case was not attributed to any person.

Hadds
In criminal law, it means specific penalties fro specific offenc.. 9 Written notes

Tazir and Siyasa or discretionary and exemplary punishments:

Tazeer and Siyasa meant discretionary punishment and exemplary punishment respectively, where
the kind and amount of punishment rested entirely on the discretion of the judge. Under Tazeer
the punishment could be anything from imprisonment and banishment to public exposure. The
power of sentencing criminals to suffer discretionary punishment under the legal denomination of
Tazeer, Accobut and Seasut in three cases. First, in the cases of offences for which no specific
penalty, of Hadd or Kisas, has been provided by the law; being, for the most part, offences not of
a heinous nature, the punishment of which is left discretionary. Secondly, for crimes within the
specific provisions of Hadd and Kisas, when the proof of the commission of such crimes may not
be such as the law requires for a judgment of the specific penalties. Thirdly, for heinous crimes in
a high degree injurious to society, and particularly, for repeated offences of this description, which,
for the ends of public justice as expressed by the term Seasut, may appear to require exemplary
punishment beyond the prescribed penalties; and with respect to crimes of this description, an
unlimited discretion, extending to capital punishment. The penalties of Tazeer were of two kinds;
one of a private nature, being in satisfaction of individual right; the other public and considered to
be the right of God. Tazeer by reproach which was not to be slanderous, was also legal. Siyasa
technically meant exemplary punishment, such as the ruler, or his delegate, might deem expedient
for the protection of the community against dangerous characters, especially such as habitually
committed atrocious crimes, and of whom there could be no hope of reformation.10 These were
the practise of criminal law in the sultanate period, the Mughal Empire and other Muslim Kings
of State of this Indian sub continent. Soon after the emergence of 9 Supra note 7 10 Ibid. Electronic
copy available at: https://ssrn.com/abstract=3875515 Page 7 of 10 British East India Company and
their command, various harsh practise of criminal law was eradicated and other British society
influenced practise of criminal law enforced
PRE-INDEPENDENCE DEVELOPMENT OF CRIMINAL LAW IN MODERN INDIA:

The development of criminal law in modern India before gaining independence was a process of
changing and updating the legal system. Here's a simple explanation of the key points mentioned:
 1. Warren Hastings' Efforts: In the 18th century, Warren Hastings initiated efforts to review
and modify the laws that were influenced by the Mughal and Mohammedan traditions.
However, these changes were not organized into a single code.

2. Cornwallis' Attempt: Later, Cornwallis also tried to make changes to the legal system.
He encountered many problems with the existing criminal laws influenced by previous
rulers. As a result, these laws were completely revoked, and they began to implement laws
similar to those in England.

3. Problematic Crimes: Certain crimes, such as dacoity (gang robbery), robbery, burglary,
and infanticide, were problematic and required legal reforms. Social issues like infanticide,
the practice of Sati (widow burning), the profession of poisoner, and slavery needed to be
addressed.

4. Charter Act 1833: The British Parliament passed the Charter Act in 1833, which was a
significant step in the development of Indian criminal law. This act led to the establishment
of the Indian Law Commission, which was tasked with studying the jurisdiction, powers,
and rules of existing courts, making reports on their findings, and suggesting legal reforms.

5. Indian Penal Code (IPC): The first Law Commission, which worked from 1834 to 1879,
played a vital role in codifying laws. One of the most important outcomes was the Indian
Penal Code, drafted by Macaulay in 1837 and officially enacted in 1860. The IPC became
a fundamental legal framework for criminal offenses in India.

6. Code of Criminal Procedure (CrPC): Another essential law codified during this period
was the Code of Criminal Procedure, passed in 1861. It established procedures and
safeguards for the administration of criminal justice in India.

7. Evidence Act 1872: The Evidence Act of 1872 was also introduced, bringing scientific
practices to the realm of criminal law and other areas of legal proceedings.
8. British-Imposed Laws: While these laws were created by British rulers, they had a
significant impact on Indian society. They represented the authority and power of the
British Empire in India.

9. Additional Acts: Apart from the IPC, CrPC, and Evidence Act, several other laws were
enacted, including the Central Excise Duty Act 1944, Foreigners Act 1946, Prison Act
1894, and Explosive Substances Act 1908, to address various legal and administrative
issues.

These developments in criminal law were part of the transition from traditional laws influenced by
Mughal and Mohammedan customs to a more structured and modern legal system influenced by
British laws and principles.
POST-INDEPENDENCE DEVELOPMENT OF CRIMINAL LAW IN MODERN INDIA

After India gained independence, significant changes were made to the country's criminal laws.
The Constitution of India became the supreme source of all existing laws in the country. Any law
that contradicted the Indian Constitution would be invalidated. This meant that all existing laws
were reviewed and validated to ensure they were in line with the Constitution.

The Indian Penal Code (IPC) of 1860 and the Indian Evidence Act of 1872 continued to play a
crucial role in the practice of criminal law. However, several amendments were made to these laws
over the years. These amendments included changes to various sections of the IPC and Evidence
Act, such as the definitions of "Electronic record" and "Harbour," and sections related to criminal
conspiracy, sedition, causing death by negligence, molestation, acid attacks, dowry deaths, sexual
harassment, voyeurism, stalking, and other sexual offenses. Amendments also addressed issues
like cruelty by a husband or a relation of the husband.

Criminal law in India continued to evolve with the emergence of new offenses and legal
developments. Various new legislations were introduced to address specific issues, such as:
(i) Prevention of Corruption Act
(ii) Narcotic Drugs & Psychotropic Substances Act 1985
(iii) Juvenile Justice Act 1988
(iv) Probation of Offenders Act 1958
(v) The Immoral Traffic (Prevention Act) 1956
(vi) The Schedule Caste And Schedule Tribes (Prevention of Atrocities ) Act 1989
(vii) Income Tax Act 1961
(viii) Arms Act 1959
(ix) Information Technology Act 2000

These legislations not only deal with criminal law but also define offenses. Additionally, the Code
of Criminal Procedure (CrPC) of 1973 plays a crucial role in the field of criminal law.

Modern criminal law in India has expanded beyond traditional punitive approaches. Concepts like
reformation, where offenders can be rehabilitated and reintegrated into society after serving their
sentences, have gained importance. Criminal psychology is also a subject of research, and there is
a belief in Indian society that offenders can change and become productive members of society
after undergoing reformation or punishment.
Victimology is another significant aspect of contemporary criminal law. When a crime occurs,
victims often suffer greatly. To address this, various types of victims receive compensation to
alleviate their suffering. Compensation is provided through mechanisms such as the District Legal
Service Authority or State Legal Service Authority, or as ordered by a judge of an authorized court
in accordance with the relevant legislations. This focus on victims' rights and compensation aims
to reduce the pain and suffering experienced by those who have been victimized, especially in
cases of heinous crimes like acid attacks, rape, murder, burn injuries, or grievous hurt.