CRIMINAL LAW OF THE HINDU SYSTEM:
The Arthasastra, Manu Smriti, and Yajnavalkya Smriti are significant legal texts from ancient India, with
Manu Smriti being particularly influential on Indian society. This code outlines the laws, duties of kings,
and principles of justice based on Dharma.
Manu Smriti categorizes law into 18 main topics, which encompass both civil and criminal laws. These
topics include issues such as theft, assault, defamation, debts, and contracts. Crimes like adultery,
robbery, and violence are recognized, and punishments for these offences can include fines,
imprisonment, banishment, mutilation, or even death. The punishment is determined by the king based
on various factors like the nature of the crime and the offender's situation.
A notable aspect of Manu Smriti is its caste-based distinction in punishments. Brahmins, the highest
caste, and women are exempt from the death penalty, often receiving banishment instead. In contrast,
lower-caste individuals could face severe punishments, including death, for crimes like adultery with a
higher-caste person. This led to criticisms of the code for its inequality and bias toward Brahmins.
Despite this criticism, some legal scholars argue that there is a rationale behind the unequal
punishments outlined in the code. Additionally, during Warren Hastings' governance, a Hindu legal code
called the Gentoo Code was established, which included harsh penalties, such as the death penalty for
murder, and differentiated punishments for types of theft.
Overall, these ancient legal codes shaped societal norms and justice practices in India, reflecting the
complex interplay of law, caste, and morality.
Mohammedan criminal law:
Mohammedan criminal law is based on the Holy Koran and was developed through the sayings
of the Prophet (Hadis), scholarly interpretations (Kiyas), and consensus (Ijmma). This legal
system has a divine foundation, with human involvement mainly in procedural rules.
During the Mughal Empire in India, this law replaced the old Hindu penal system. Notable Sunni
scholars like Aboo Haneefa and his followers significantly influenced the law during Akbar's
reign (1556-1605).
The law divides crimes into three main categories:
1. Kisas: Retaliation laws, including blood money (diyut).
2. Hud: Fixed penalties for serious crimes like theft and adultery.
3. Tazeer: Lesser, discretionary punishments.
Homicides were categorized into five grades, from murder to accidental killing, with severe
punishments such as amputation for theft and stoning for adultery, highlighting the law's strict
nature.
Critics have noted issues with the law, such as the exclusion of non-Muslims' testimonies and
the stringent evidence requirements for sexual offenses, which often resulted in unfair
treatment, especially of women. The system has been described as confusing and ineffective.
Under the Mughal administration, civil laws fell under "diwani" (civil governance) and criminal
laws under "nizamat" (military and criminal justice). After the decline of Mughal power, the East
India Company took over these roles, fully administering criminal justice by 1790 and ending
traditional local governance.
In Calcutta, the criminal justice system had a hierarchy of authorities, starting with a supreme
magistrate (nizam), followed by a deputy nizam and a Foujdar for non-capital crimes. Outside
the city, zamindars had their own courts, but any death sentences had to be reported to the
central authority before execution.
DEVELOPMENT OF CRIMINAL LAW IN INDIA UNDER THE BRITISH RULE:
Before the British arrived, India mainly followed Mohammedan Law for its penal system. The
British East India Company allowed this law to continue for some time, only replacing it when
their own regulations and the Mohammedan Law prescribed different punishments for the
same crimes.
In 1773, the Regulating Act led to the establishment of new criminal courts called Foujdaree
Adalat in each district, which included local Muslim judges and a European supervisor to ensure
fair trials. A higher court called Nizamat Sadar Adalat was created for appeals. Later, in 1793,
further reforms under Lord Cornwallis brought European judges into the system alongside local
law experts.
These courts initially focused on native Indians, while a separate system was created to apply
English law to Europeans in India. The Regulating Act allowed the establishment of a Supreme
Court in Calcutta to handle complaints against British subjects. Similar courts were later set up
in Madras and Bombay.
As British judges began to rely more on English law, it created inconsistencies in the legal
systems across different regions. The first formal penal code was introduced in the Bombay
Province in 1827, which replaced the Mohammedan Law there. When Punjab was annexed in
1849, a new code was created for that region as well.
By 1858, when the British Crown took over from the East India Company, the criminal law in
many parts of India was a mix of different systems, prompting a need for further reform, which
would later be shaped by the Charter Act of 1833.
THEORIES OF PUNISHMENT:
1. DETERRENT THEORY
2. RETRIBUTIVE THEORY
3. PREVENTIVE THEORY
4. REFORMATIVE THEORY
5. MULTIPE APPROACH THEORY
1.DETERRENT THEORY:
• The word ‘deter’ means to prevent.
• Here deterrent theory means refraining from doing a particular act.
• The main objective of this theory is to restrain criminals from committing a crime.
• In such theory punishments are severe in nature which creates fear not only in criminal’s
mind but also in other’s mind too.
• This theory is still prevalent in some Islamic countries.
• In other words, the main objective of this theory is not only to prevent wrongdoers from
doing wrong but also to make him an example for society and others who have same
criminal tendencies.
• Supporters of this theory are Plato and Locke.
• India’s supreme court has recently supported this theory in cases of murder and rape.
• CASE LAW: PANIBEN V. STATE OF GUJARAT
• DRAWBACKS:
1. Punishment fails to create fear in the minds of criminals once the punishment is over.
2. This type of punishments fails to create fear in the minds of hardened criminals.
2.RETRIBUTIVE THEORY:
• The word ‘retribute’ means to give in return the same thing that has been received.
• This theory is based on the phrase ‘an eye for an eye’ emphasizing revenge and equal
punishment for the crime committed.
• It is also known as vengeance theory.
• The objective of this theory is to make the accused realize the suffering of the pain by
subjecting him to the same kind of pain as he had caused to the victim.
• The punishment has to be proportional to the crime committed.
• This theory has not been supported by the criminologists and the sociologist because it is
not fair.
• Supporters of this theory are Kant, Plato, Hegel.
• CASE LAW: JAGMOHAN SINGH V. STATE OF UP.
• DRAWBACKS:
1.Lack of Rehabilitation: Retributive justice focuses on punishing offenders rather than helping
them change, which can lead to repeat offenses because the reasons behind their behavior are
not addressed.
2. Inequality in Sentencing: This approach can create unfair punishments based on factors like
race, wealth, or legal assistance, resulting in sentences that do not match the crime's
seriousness.
3.Ignoring Future Prevention: Retributive justice looks only at past actions, not how to prevent
future crimes, which may not keep society safe.
4.Unclear Concepts of Justice: The idea of what someone "deserves" can vary greatly between
people, leading to disagreements about what is fair punishment.
5.Focus on Revenge: This theory can emphasize revenge rather than real justice, potentially
leading to ongoing cycles of anger instead of healing for victims and communities.
3.PREVENTIVE THEORY:
• The theory aims to protect the society by removing the offenders from the society by
imprisonment or death.
• The objective of the theory is to prevent or disable the offenders from repeating the same
offence by giving them punishments.
• Supporter of this is theory is Paton.
• CASE LAW: D.K. BASU V. STATE OF WEST BENGAL
• DRAWBACKS:
1.Unfair Punishments: Sometimes, people may be punished more severely than necessary
just to prevent future crimes, even if they are not likely to re-offend.
2.Neglect of Rehabilitation: The focus on preventing future crimes can lead to a lack of
emphasis on rehabilitating offenders and helping them reintegrate into society.
3.Injustice Risks: It might lead to punishing individuals based on their perceived future risk
of offending, rather than their actual actions, which can be unfair and discriminatory.
4.Fear-Based Motivation: People may follow the law out of fear of punishment rather than
understanding or respect for the law, which can undermine moral values and social
cohesion.
4.REFORMATIVE THEORY:
• The idea behind this theory is that, no one is born criminal and criminal are also
humans.
• This theory was successful to some extent in cases of juveniles.
• The reformative theory of punishment focuses on rehabilitating offenders rather than
strictly punishing them. The main idea is that people can change and become better
citizens if given the proper support and guidance. Instead of just imposing a penalty, this
theory emphasizes education, therapy, and social reintegration to help individuals
understand their actions and prevent future crimes.
1.Focus on Rehabilitation: The goal is to reform the offender so they can reintegrate into
society.
2.Understanding Behavior: It aims to address the underlying issues that led to criminal
behavior, such as poverty, addiction, or lack of education.
3.Support Systems: Offenders receive support through counseling, job training, and other
resources.
• Drawbacks:
1.Not Always Effective: Some offenders may not respond well to rehabilitation programs,
leading to recidivism (reoffending).
2.Resource Intensive: Implementing comprehensive reform programs can require significant
financial and human resources, which may not be available in all areas.
3.Public Perception: Some people may view rehabilitation as being too lenient, believing
that offenders should face stricter punishment for their actions.
4.Risk of Relapse: Even with reform, there is still a risk that an offender may return to crime
if not properly monitored or supported after release.
• CASE LAW: SUNAIL BHATRA V. DELHI ADMINISTRATION
