History of Judicial system – 2

Criminal Law, Civil Law and Personal Laws During British Period-

Criminal Law in the British Period- During this time, serious offences like homicide became crimes against the state instead of being private offences. From 1790 onwards, Lord Cornwallis extended the process of codifying criminal law. Major changes took place in the subject of sentencing. The law even divide modes of punishments into categories. These included death, dismembering of limbs, stoning, levy of fines, confiscation of property, the punishment of exile etc.

After the British arrived in India, they initially decided not to interfere much with existing Muslim Criminal Laws. They implemented changes in a phased manner so as to not upset the locals.

When Warren Hastings introduced his Judicial Plan of 1772, he did not do any severe changes to substantive criminal law. In 1773, he slowly started changing rules of procedure and evidence in existing criminal laws. For example, he abolished the practice of allowing male relates of victims to pardon their killers.

During this time, serious offences like homicide became crimes against the state instead of being private offences. This laid the foundation of the modern of the state prosecuting people who commit public offences. From 1790 onwards, Lord Cornwallis extended the process of codifying criminal law. Major changes took place in the subject of sentencing. As a result, the process of levying punishments physically harming and dismembering slowly started fading.

Lord Wellesley made even more changes to the offences of murder and homicide in the early 1800s. For example, the law now made distinctions between intentional and unintentional killing. Furthermore, rules of evidence became stricter and the threshold of proof to indicate guilt increased greatly. In Presidency Towns like Madras, Bombay and Calcutta the British made many changes keeping local conditions in mind.

Codification of Substantive Criminal Laws

According to the Charter Act, 1833, India’s first Law Commission in 1834 recommend drafting of the Indian Penal Code. Lord Macaulay, who was the chairman of that law commission, spearheaded it’s drafting . The Code was basically a comprehensive enactment describing all major crimes in existence at that time.

Despite several revisions over almost thirty years, the law did not come into force until 1860. It was only after the Rebellion of 1857 that the British decided to implement it. IPC has seen several amendments since its first came into existence. Although it largely relied on British Laws and Practices, many of its provisions are still the same. Even the Indian Evidence Act came into existence in 1872 under the guidance of Lord Macauley. It’s foundation was largely the British Law of evidence, but it has seen many changes since then.

Codification of Procedural Criminal Laws

Although the British had enacted a Criminal Procedure Code for India in 1862, modern procedural laws came much later. The. Code of 1862 was amended and replaced many times to make procedural laws modern. After Independence , the Law Commission made many recommendations to update CrPC. Some of these changes were the abolition of Jury Trials as le. The most important reason for these changes was to make the criminal procedure quick and effective. CrPC was finally enacted again by the Parliament in 1973, and has been amended many times since then.

Civil Law-

A complete hierarchy of Courts was established to deal with civil matters. In this hierarchy at the top was the Sadar Diwani Adalat and in the bottom were the Courts of Munsifs and Ameens. The jurisdiction and constitution of these Courts may be mentioned in brief.

  • Sadar Diwani Adalat- The Sadar Diwani Adalat was the highest Court in the judicial hierarchy which consisted, as usual of the Governor- General and Council. It heard appeals against the decisions of the Provincial Courts of Appeal in matters exceeding Rs 1,000. An appeal against the decisions of this Court could go to the King-in-Council in matters exceeding Pound 5,000.

The changes introduced in the powers and functions of this Court related to the supervision and control of the lower judiciary. In that capacity the court could receive any original suit to be referred to the Provincial Court of Appeal or to the Diwani Adalat, if either of them had neglected to entertain the matter.

( b) Provincial Courts of Appeal- Before the scheme of 1793, the only appellate court was the Sadar Diwani Adalat with its seat at Calcutta which was hardly accessible to the people living in the interior. The Court did not have enough time to decide the appeals which came before it and generally, they remained pending for several years. So in practice very few appeals were made to the Sadar Diwani Adalat and that too only by those who could afford to go to Calcutta. Indirectly it amounted to the absence of any appellate court.

To avoid all these defects and increase efficiency a Court of first appeal was established in each of the four divisions of Patna, Dacca, Calcutta and Murshidabad with the name of Provincial Court of Appeal. The Provincial Court of Appeal consisted of three British Servants of the Company’s as it’s judges. The Provincial Court of Appeal has the jurisdiction to try civil suits referred to it by the Government or the Sadar Diwani Adalat, to entertain and refer back to Diwani Adalat those cases which it had refused to entertain; to hear appeals in all matters against the decisions of the Diwani Adalat, if filed within three months, and lastly, to receive charges of corruption against the judges of the Diwani Adalat and send them to the Sadar Diwani Adalat with its report. In this way the court, apart from being Court of Appeal in all matters, also had direct control over the subordinate courts, ie the Diwani Adalats.

( c) Diwani Adalat- At the district level the Diwani Adalat was reorganised by dislodging the Collector from its judgeship and appointing a civil servant of the Company in his place as its judge who had no other work except deciding the civil and revenue disputes. The judge was required to take an oath of impartiality and was also required to keep proper records of all the proceedings and hold the court in open so that it could be seen by the people that justice was actually being administered.

( d) Registrar’s Courts- The Diwani Adalat could refer the suits up to the value of Rs 200 to the Court of Registrar which was held by a servant of the Company.

Although much of the civil law of the native people was left untouched, there were more complications on this side of law. The reasons were that apart from Hindus and Muslims many other people such as Parsis, Christians, American Jews etc also lived in the country for whom-in the country for whom there was no law. The position was very confusing with respect to these people as well as to Hindus and Muslims. In Presidency Towns the position was different from Mofussil and at neither place the position was clear.

Presidency Towns- In Presidency Towns the position of the law was somewhat as below:-

  • The common law and statutory law of Britain as it existed in 1726 and which was not made inapplicable to India either by Parliament of England or by Governor-General in Council. But such a Law of Britain was to be applied to the extent to which it suited Indian conditions.
  • The Acts of British Parliament passed after 1726 and made applicable to India either expressly or by necessary implication.
  • The Regulations made by the Governor-General in Council.
  • The law of the Hindus for Hindus and of Mohammedans for Mohammedans or of the defendant, only if one party was a Hindu or Mohammedan, in all matters regarding inheritance, succession to land, goods and rents, and all matters of contract and dealing between parties.
  • English Law for persons other than Hindus and Mohammedans
  • The law of the ecclesiastical and admiralty courts in the matters concerning those aspects.

Law in Mofussil- The law in Mofussil area particularly in Bengal, Bihar and Orissa was as-

  • The Acts of British Parliament extended to such area either expressly or by necessary implication. However, hardly any law of British Parliament was extended which related to substantive aspect of civil law.
  • Regulations made by the Governor- General in Council were very few.
  • Law of the parties in case of Hindus and Mohammedans or  of defendant if only one party was a Hindu or Mohammedan, in all cases of succession, inheritance, marriage, caste and other religious institutions.
  • In all other cases the matter was to be decided on the principle of  ‘justice, equity and good conscience’ which was applied from the very beginning.

Practically very little substantive law was made with respect to Mofussil Area and most of the cases were decided either by the personal laws of the parties or with the help of English Law moulding it to Indian circumstances. Almost the same system of law as existed in Bengal existed in other provinces also. In Bombay some of the basic principles with respect to the applicability of law were compiled in the Elphinston’s Code of 1827.

Personal Laws in India during British Period- Personal Law is defined as a law that applies to a certain class or group of people or a particular person based on the religions, faith and culture. In India, everyone belongs to different caste, religion and have their own faith and belief. Their belief is decided by the set of laws. And these laws are made by considering different customs followed by that religion. Indians are following these laws since the colonial period. There are personal laws of Hindu, Muslims and the Christian Community.

Personal Law

Laws relating to marriage have been clearly codified in different Acts which are applicable to people of different religion. These Acts are:

. The Convert’s Marriage Dissolution Act, enacted during 1866

. The Indian Divorce Act, enacted in 1869

. The Indian Christian Marriage Act, enacted during 1872

. The Kazis Act, enacted during 1880

. The Anand Marriage Act, enacted in 1909

. The Indian Succession Act, enacted during 1925

. The Child Marriage Restraint Act, enacted in 1929

. The Parsi Marriage and Divorce Act, enacted in 1936

. The Dissolution of Muslim Marriage Act, enacted during 1939

. The Special Marriage Act, enacted during 1954

. The Hindu Marriage Act, enacted during 1955

. The Foreign Marriage Act, enacted in 1969 and

. The Muslim Women (Protection Of Rights on  Divorce) Act, enacted in 1986.

In personal cases, courts are required to work with the personal laws when the issue is not being covered by any statutory law.For instance, Hindu Law

Hindu Personal Laws

Hindu personal laws can be found in:

. The ‘Shruti’ which contains all the four Vedas, namely Rig Veda, Sama Veda, Yajur Veda and Atharva Veda.

. The ‘Smritis’ which are handed down teachings and sayings of Rishis and holy men of Hindu Religion and the commentaries written by many historic authors about the ‘Smritis’.

 There are three types of Smritis, namely: Codes of the Manu, Yajnavalkya, and Narada.

Personal Laws and customs as recognised by the Statutory Law regulate the Hindus. These are applicable to legal issues related to to matters of inheritance, succession, marriage, adoption, co-parenting, the partition of family property, obligations of sons to pay their father’s debts, maintenance and religious and charitable donations.

Sources of Muslim Personal Law

. The Holy Quran

. The sayings and teachings of Prophet Mohammed carefully preserved in tradition and down generation to generation by holy men.

. Ijma, the agreement of Muslim Scholars, companions, and disciple of Prophet Mohammed on matters of religion.

. Kiyas, an analysis made during Quran, sayings of Prophet Mohammed, and Ijma when any individual one of them is not applicable to a particular case.

. Digests and commentaries on Muslim Law, written by ancient Muslim scholars. The most famous include Hedaya (composed in the 12th Century) and Fatwa Alamgiri, compiled under the instructions of Mughal Emperor Aurangzeb Alamgiri.

Personal Laws and customs govern the Muslims. It applies to all matters relating to inheritance, will, succession, legacies, marriage, dowry, divorce, gifts, wakfs, guardianship and pre- emption.

Christian Personal Law

The Christian Marriage Act, enacted during 1972 has instructions on dealing with the matters related to matters of marriage. Indian Divorce Act enacted during 1869 contains matters related to divorce.

Under the directions of this Act, the husband can appeal for divorce on grounds of adultery by the wife. Similarly, the wife can appeal for divorce on grounds of adultery on the part of his wife and the wife can seek divorce on the ground that the husband has converted to another religion and has gone through marriage with another woman or has been guilty of any of the acts mentioned in the Act.

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