Evolvement of Criminal Justice System In Our Subcontinent
Sudip Chandra Halder:
The mankind right from its inception has devised various means & measurer to maintain law and order in the society and control the criminal tendencies among its indist. The mechanism to control the criminal behaviour varies society to society and in the same society from time to time.
The mechanism of arrest, trial and punishment undergoes major changes with the progress of civilization as well as socio economic and political condition prevailing during different phase of history that go into influence the evolution and growth of the system.
Criminal Justice System in ancient South Asia was governed by ‘Dharma’ as law of Dharma propounded in Holy Vedas was considered supreme in ancient subcontinent and later some of the laws & directions were found in Holy Manu Samhita as well. The rights to punish the offender rested with the King. The ancient Hindu law was very significant though it did not expressly digtinguish between the Crime & the Civil Wrong. Later the King with the progress and development of the society started making laws and regulation, in the light of prevailing local customs and usages. The change in the system were very slow but gradual and significant.
Crown in England during the 12th century gradually assumed control over administration of Justice. But very interestingly, the compensation was to be paid to the crown rather than to the victims. However, no formal techniques were devised. Criminal Justice System prior to the 18th century was characterised by the informal techniques and the law which was not codified. It is a matter of historical truth that the ancient era some formalized legal codes and state administered procedure can be traced out which outline the functioning of the Criminal Justice System. Except the era of Holy Vedas & Holy Manusamhita, the code of Hammurabi developed by the King Hammurabi of Babylon in 18th century B.C. was the earliest known system of laws.
In the middle of the 18th to 8th century, Arab Traders had started to come in Indian subcontinent and from the 8th to the 12th century that a process of Islamization began in subcontinent-a process of religious conversation from Hinduism & Buddhism to Islam. By the end of the 12th century a significant portion of subcontinent’s population became Muslims. The thirteenth century saw the end of the dominance of the Hindu aristocracies in subcontinent and Subcontinent was ruled by six successive Muslims dynasties-Slave Dynasty, Khilji Dynasty, Tughlaq Dynasty, Saiyyid Dynasty, Lodhi Dynasty and Mughal Dynasty, from 1199 AD to 1857 AD.
After the conquest of Muslims, Muslim law was introduced in Indian Subcontinent & the Courts started to apply Muslims Criminal Law in Administration of Justice.
The main source of the Muslim Criminal law was the Holy Quran and Hadith. The Quazis were responsible for eludicating and expounding of the laws.
The Muslim criminal law divides crimes as crimes against God like adueltery & drunkenness and crime against man like murder & robbery. The crimes against God were regarded as public wrongs and were punishable by the society or community. The offence against man were regarded as private and were also punishable, but the victims or the victims next kin had very vital role so far as the nature & quantum of punishment was concerned. The matter could be closed with the compensation what in the most of the cases was known as blood money.
Vasco da gama came in Subcontinent in 1498 AD & he was followed by the British Merchants entered India in 1600 AD and gradually occupied entire subcontinent. There were many operational difficulties till the administration of Muslim Criminal Justice was taken over by the East India Company.
With the spread of colonial modernization & globalisation, a new world system of criminal justice began to expand to the colonies like Indian Subcontinent. The new world system of criminal justice spread, albeit in different depths and degrees, in almost all over the colonized world from Kolkata to Kanya, Jakarta to Jamaica and Hong Kong to Honduras. The new world system of criminal justice in the colonies was indeed an extention of the evolving modern criminal justice in western Europe-England, France, Germany & Netherland. Within the colonial states the old structures of medieval criminal justice were destroyed, new definition of crime and criminality were invented, new institutions of law and law enforcement were established, new structure of the judiciary were created, new model of prison and corrections were introduced and research for a new science of criminology began to expand. This was the beginning of first modernization in the criminal justice in the colonies.
One of the most civilizing impacts of colonial justice in India that came through the enactment of the Bengal Sati Regulation of 1829 under the rule of Governor General Lord William Bentinck. Another Civilizing status was the Hindu Widow Remarriage Act of 1856.
However, in South Asia, the first wave of modernization formally began with the introduction of English Common Law through the enactment of Government of India Act of 1858. With the introduction of English Common Law the existing body of Hindu Laws were largely removed from criminal justice.
From the middle of the 19th century a modern structure of criminal justice began to expand in South Asia through the Indian Penal Code of 1860, which came into force in 1st January,1862; Indian Police Act 1861, Indian Evidence Act of 1872, the Indian Code of Criminal Procedure of 1882 as amended by 1898. The present system of criminal justice in Bangladesh, India & Pakistan are built structurally on the foundations of these five legal documents of British Colonial India and they remained largely unchanged for the last one hundred & fifty years.
From the perspective of systematic modernization, the passage of the Legal Practitioners Act of 1846 that paved the way for integration of native Indians into the colonial judiciary and the Indian High Court Act of 1862 that created a modern hierarchical system of upper courts in India, were of great significant.
writer: Sudip Chandra Halder
LLB [Honours], University of London, UK
LLM [Pursuing in Criminal & Security Law]
