Jurisprudence Of Justice Delivery System: Ancient To Modern

1. Introduction:-

The law of crimes has been known to us through all ages of civilization. It is in fact as old as our civilization. Whenever men and women formed into an organized society, the need for a criminal law has always been felt. In primitive society, there was no organization in society. They lived in the nature. Self preservation is the first instinct of nature. Thus they only knew how to protect themselves, i.e., self protection. Later on it was known as hunter age.

After that family comes as a unit. The head of the family was known as the king of the family, the law giver, judge and priest. It was known as patriarchal system, the first known government to the history, the power of the father in these families is absolute, and he could even put to death any of his children.

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But the head of the family had no jurisdiction beyond his own family, so if conflict arises between two families, then who will settle? Therefore, it became necessary to evolve some device for bringing several families together, this was done by development of clan system, (a union of various families) and from this the concept of family came.

The above account shows that from individual to family and from family to state was the evolution of ancient society. Thus, how the necessity of criminal law rose in primitive society can be illustrated through the following diagram:-

Maine in his ancient law has observed that the penal law of ancient communities is not the law of crime; it is the law of wrong or to use the proceeding against the wrong or to use the English technical word of Tort. The person injured proceeds against the wrong doer by an ordinary civil action and recover compensation in the shape of pecuniary damages, if he succeeds.

According to Diamond, the courts appear in the first and second agricultural grades of the society in the primitive stages. In these courts the very limited acts of the members of the society were noticed and punished. There is no systematic trial also with regard to these anti-social acts, nor is there any organized public action against him. Some person or persons are made responsible for meeting out appropriate punishment for the offences but the punishment was not dealt with immediately, it is often delayed and sometimes even the offender escaped unharmed.

Era of code began with the code of Hammurabi of 1914 B.C., the volume criminal law remains very small. Under the codes, greater attention was paid to the direction of civil law. Of course, some anti-social acts were looked upon as crimes, especially those which involved disloyalty or insult to the king, the punishment for which was given by the king himself.

In the primitive stage, the damage was awarded to the victim on the basis of vengeance. Lex Talionis was the rule. If the offender caught red handed, he was given a more severe punishment than one who was detected afterwards.

The history of primitive criminal law may be said to have passed through four stages:-

1. In the initial stage, we find ,at the idea of individual injury to collective injury,
2. In the second stage, when crimes are multiplied the state is compelled to delegate its power to particular commissions and not individual persons wronged.
3. In the third stage, permanent commissions were appointed,
4. This permanent commission has been developed later on as criminal courts of justice.

No account of the history of criminal law in the primitive stage will be completed unless we also trace the development of the law of homicide. Homicide for a very long time remained in many aspects a civil wrong. However, intentional homicide was punished by death and confiscation of goods, while involuntary homicide was punished by banishment for a limited period.

In the Hebrew Code, we find that a capital punishment was provided for homicide. Pecuniary compensation was provided in the Hittite Code. [footnoteRef:2] [2: R.C.Nigam, Jurisprudence of Justice Delivery System.]

According to Wikipedia, criminal justice system is the system of practices and institutions of governments of governments directed at upholding social control, deterring and mitigating crime, or sanctioning those who violate laws with criminal penalties and rehabilitation efforts. Those accused of crime have some protections against abuse of investigatory and prosecution powers.

2. Objectives of criminal justice system:-

The main objectives of the criminal justice system can be categorized as follows:-

• To prevent to occurrence of crime,
• To punish the transgressors and the criminals,
• To rehabilitate the transgressors and the criminals,
• To compensate the victims as far as possible,
• To maintain law and order in the society,
• To deter the offenders from committing any criminal act in the future.

3. Development of criminal law in Indian sub-continent:-

The development of criminal law in India can be grouped into three main groups, such as, ancient India, Medieval Age and Indian Penal Code.

• A. The ancient India contains the following:-
  • 1. Pre – historic period (primitive societies),
  • 2. Development of criminal law in India in-
• A. Vedic Civilization( Aryan Culture),
  • · Early Vedic Period (1500-1000B.C.)
  • · Later Vedic Period (1000-500 B.C.
• B. The Epic Age (1000-700B.C.)
• C. Mauryan Administration (324-232 B.C.)
• D. Satavahana Period (235 B.C.-220 A.D.)
• E. Gupta Dynasty (300-600 A.D.)
• F. Harsha : classical age of ancient India (606-60)
• G. Chola (South India) Dynasty (4th -3rd century B.C.)
• H. Pallavas of Knachi.
• I. Chalukyas of Badami.
• B.Medieval Age:- (The advent of Islam into India)
  • I. Delhi sultanate (1206-1526 A.D.)
  • II. Vijayanagar Empire (1336-1605 A.D.)
  • III. Sher Shah- The Sur Dynasty (1540-1545 A.D.)
  • IV. Judicial Administration under the Mughals (1526-1857 A.D.)
  • V. The Marthas (the rule of Shivaji and Peshwa: 1674-80 A.D.)
• C. Modern India:- (Imperial rule in India)
  • I. Administrative reforms of some important Viceroys.
    • i. Lord Canning (1858-1862)
    • ii. Lord Lytton (1876-1880)
    • iii. Lord Ripon (1880-84)
    • iv. Lord Curzon (1899-1905).
  • II. The judiciary system and law courts under the rule of East India Company.
  • III. Judicial reforms under Crown Government.
  • IV. Judicial reforms introducing by Governor Generals:
    • a) Warren Hastings (1732-1818)
    • b) Charles Marquis Cornwallis (1738-1805)
    • c) Lord William Bentinck (1774-1839)

V. Indian Penal Code.

Jurisprudence of justice delivery system in ancient India:-

The king administered justice and wielded the rod of punishment. Among the crimes enumerated was theft, robbery, adultery, incest, abduction, killing of man. The killing of cow, slaying of Brahmana, drinking intoxicating liquor, treachery, etc. were punishable by death. Petty offences were left to ‘village judges’. For instance, the eye-witness was more important than the informer. The punishments for crimes were rather severe. The law was also very clear on the question of inheritance of property, ownership of land etc. the property was to be inherited by some alone. The daughter could inherit it only if she was the only child or there were no male issues.[footnoteRef:3] [3: K.N.Khurana, Ancient India, p, 37.]

The king was the fountain head of justice. No partiality was done while making a judgment. The study of the epics reveals that the culprits and accused were punished severely. There is a reference of fire-test in the Ramayana. Sita had to face the fire-ordeal in order to prove her chastity. Thus, the members of the royal family also were not exempted from receiving punishment in case of any crime or fault.[footnoteRef:4] [4: S.R.Myneni, Indian history, p.33.]

A. Ancient India

Hindu period:-

The germ of criminal jurisprudence came into existence in India at the time of Manu. He gave a comprehensive code which contains not only the ordinances relating to law, but is a complete digest of the then prevailing religion, philosophy and customs practiced by the people. Manu has recognized assault, bettry, theft, robbery, false evidence, slander, and libel, criminal breach of trust, adultery, gambling and homicides as crimes. These are the principal offences against persons and property that occupy a prominent place in the Indian Penal Code. The king used to either dispense justice himself with the help of counselors or appoint judges and accessors for the administration of criminal justice. These precepts are excellent. However, the substantive criminal jurisprudence of Manu is not free from bias. According to him, the gravity of the offence varies with the caste and creed of the criminal and so thus the sentence. The protections given to Brahmins were paramount and they were placed above all others. Such discriminatory provisions are against the principles of natural justice.

During this period, there was no clear distinction between private and public wrongs. Murders and other homicides were regarded as private wrongs. The right to claim compensation was the rule of the day. A distinction was however, drawn between casual offenders and hardened criminals. Again, he made provisions for exemption from criminal liability. Where the act was done without any criminal intention or by mistake of fact or by consent or was the result of accident march on the lines provided in Chapter IV of Indian Penal Code. The right of Private Defense was fully developed during the Hindu Criminal jurisprudence. Kautilya’s Arthasastra [footnoteRef:5] contained an elaborate account of economic, political and legal administration in the 4th century B.C. It describes in detail procedure to be followed by courts for dispensation of justice, both civil and criminal.[footnoteRef:6] [5: The Arthasastra of Kautilya consisted of fifteen chapters, 380 shlokas and 4968 sutras and dealt with a wide variety of subjects like civil administration, criminal and civil justice system, taxation, revenues, foreign policy, war, defense, etc.] [6: Dr. N.V.Paranjape, Studies in Jurisprudence and Legal Theory, p.185]

B.Medieval India

Mohammedan Law period:-

The Muslim invaders also play a very significant role in the administration of criminal justice system in India. The advent of Islam into India is counted from 1206 A.D. to 1680 A. until the British took over the reign of the country. The Muslim legal system had its origin in the Koran, which is said to have been revealed by God to the Prophet. In Muslim law, the concepts of sin, crime, religion, moral and social obligation are blended in the concept of duty, which varied according to the relative importance of the subject matter. The administration of criminal justice was entrusted in the hands of kazis. The punishment was four fold, namely, kisa or retaliation, diyut or blood money, hadd or fixed punishment and tazir or syasa, discretionary or exemplary punishment.[footnoteRef:7] [7: Essays on the Indian Penal Code, Indian Law Institute,1962, pp1-32]

However, the notions of kazis about crime were no fixed and differed according to the purse and power of the culprits. As a result, there was no uniformity in the administration of criminal justice during the Muslim rule in India, and it was in a chaotic state. Important officers in Mughal Empire for Administration of Criminal Justice:-

There were many officers in the courts who held important offices under them. Some of them are as such-vakil, muhtasib, Qazl-ul-Quzat or Chief Qazi.

The punishments during Muslim period in India were very brutal. The jailers were supposed to be rough and tough towards the prisoners. Only deterrent and retributive theories were followed in that period. Reformation of offenders was not accepted in that period.

C.Modern India

Imperial rule India:-

The Muslim system of administration of criminal justice was in practice when the British took over the reign of the country. In the beginning, they engrafted the Muslim system of administration, but were faced with much difficulty. As a result the moffussil as well as the Presidency Courts gradually began to turn to the English law for guidance and help. However, in adopting the British system, each of the Presidency Courts followed an independent course of its own. The result was a chaotic mass of conflicting and contradictory decisions on similar points. The regulations passed by different presidencies differed widely in their scope and contained different provisions.

Thus the criminal law administered in the Presidency towns, came to be in practice, the English Criminal Law. In Bombay, Portuguese law first replaced the Mohammadan law. Then followed the company’s laws of 1670 and form that time the English criminal law was applied until, under a charter of 24th September 1726, the Mayor’s court was set up and the criminal law of England was authoritatively administered in that presidency.

In Madras and Calcutta criminal jurisdiction was originally exercised over the Indian inhabitants through the Zaminders. Apparently English criminal law was applied more and more extensively in these courts, as time went on, though in those towns there was no definite substitution of that law for the Mohammadan criminal law. In 1726 Mayor’s courts were established in Madras and Calcutta under the same charter as that which set up the similar court in Bombay. However, in adopting the British system, each of the presidency courts namely, Bombay, Calcutta and Madras followed an independent course of its own.

The East-India Company paid its attention towards the organization of system of justice as it had done in case of other brunches of administration. During British period, a model court system was established.

Formation of Indian Penal Code:-

In 1834, with Lord Macaulay as President, a law commission was formed for preparing a comprehensive penal code for India to bring about consistency and uniformity in criminal law. MacLeod, Anderson and Millet were commissioners of that commission. The commission submitted its report on 15 June, 1835, and the draft Penal Code was widely circulated in order to ascertain the views of judges, jurists, lawyers and others.

After a prolonged discussion and careful consideration, the draft penal code was approved by the legislative council and received the assent of governor general in council on October 6th, 1860; and the Indian Penal Code as stated earlier was brought into force on 1st January, 1962.

In the Indian Penal Code, a comprehensive piece of legislation, originally, had 23 chapters and 511 sections. However, in the course of time, 3 chapters:-

1. V-A :Criminal Conspiracy
2. IX-A : Offences relating to Elections, and
3. XXA: Cruelty by husband and relatives of husband.

-and a number of sections have been added numbering 550, and a few sections deleted. The Indian Penal Code embodies the General Penal Law of the country, and its sole authority on the general conditions of liability, the definitions of specific offences in the IPC, and the conditions of exemptions from criminal liability. Some crimes are cognizable and some are not.[footnoteRef:8] [8: K.D.Gaur, Criminal Law: cases and materials, p.3]

The criminal law amendment act 2013:-

The new Act has expressly recognized certain acts as offences which were dealt under related laws. These new offences like, acid attack (S. 326A, 326-B), sexual harassment (S. 354-A, 354-B), voyeurism (S. 354-C), stalking (S. 354-D) have been incorporated into the Indian Penal Code.

4. Observations:-

In view the importance of the subject matter, we observed that criminal justice system in contemporary time gives emphasis to:-

• Public interest litigation,
• Bail justice jurisprudence,
• Prison justice,
• Compensation to the victims, and
• Legal aid and legal services.

In India, the improvement of criminal justice system from ancient to present day can be observed through the following points:-

• Simplification of rules and procedures,
• Repealing of outdated laws,
• Criminal law amendment,
• Police as investigating agency,
• Judicial accountability,
• Appointment, promotion and transfer of judges,
• Average Judge-population ratio,
• Perjury and contempt of court,
• Efficient public prosecutors,
• Transparency of court proceedings,
• Time bound filling of vacant post in the judiciary.

5. Suggestions:-

Criminal justice system in India requires a strong second look in:-

1. Improvement in criminal investigation system: - the criminal investigation system needs higher standards of professionalism and it should be provided adequate logistic and technological support.
2. Investigators should not be over burdened with other duties: - Serious offences should be classified for purpose of specialized investigation by specially selected, trained and experienced investigators. They should not be burdened with other duties like security, maintenance of law and order etc, and should be entrusted exclusively with investigation of serious offences.
3. Introduction of modern technology: - The number of Forensic Science Institutions with modern technologies such as DNA finger printing technology should be enhanced. The system of plea-bargaining (as recommended by the Law Commissions of India in its Report) should be introduced as part of the process of decriminalization.
4. Public cooperation: - The police are increasingly losing the benefit of this asset of public confidence. Hard intelligence in investigations comes from public cooperation. If policemen are seen as violators of law themselves or if they abuse their powers for intimidation and extortion, public develop an attitude of revulsion and the onerous duties and responsibilities that the police shoulder become more onerous and difficult.
5. Review the statistics: - the statistics of police diary should be review frequently.

6. Conclusion:-

The protection of life (and also of property) emerged from the primitive societies. People submit themselves to government for the protection of their lives as a whole. The concept of criminal law is not a new one; it begins with concept of society. The administration of criminal justice system plays a significant role in social control as well as deterring and mitigating crime in society. Generally, criminal justice system consists of three main parts:-

1. Legislative (create laws),
2. Adjudication (courts), and
3. Corrections (jails, probation, prison and parole).[footnoteRef:9] [9: https://en.wikipedia.org/wiki/Criminal_justice]

-in criminal justice system, these distinct agencies operate together.

After studying the historical background of administration of criminal justice system in India, we have seen that the administration of criminal justice system has been passed through various stages. Indian administration of criminal justice system has been influenced by mainly religions such as Hindu and Islam and western British concept. The combination of both eastern and western concepts of crime and criminal justice system helps to establish a common system of criminal justice in India in a peaceable way.

The study of the history of criminal justice system helps to modify and reaffirm the present administration of criminal justice system in India.