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Colonial Reshaping of Criminal Justice in India

Introduction

India is one of the countries with the largest population in the world. As a result, the country is prone to numerous crimes that may require a strong justice system to ensure that law and order are maintained throughout the country. The country has a rich criminal justice system, and it all traces before the colonial era. However, it has evolved over the centuries, with numerous adjustments being made into the law to incorporate the changing trends in criminal activities. Despite the changes, criminal justice in India is still wanting. Many people across India have lost faith in the justice system as they believe many criminals still abate the law, especially the wealthy and powerful government officials. Nevertheless, several numerous reforms have been conducted to ensure that everybody abides by the country’s laws. However, reforms in the Indian criminal justice field were associated with social changes promoted to shift the focus from archaic rituals to modern regulatory principles, and the introduction of an updated criminal justice system with juries and credible representatives of the law.

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History of Criminal Justice System

The criminal justice system in India has a very strong, rich history. Like every country, India was faced with numerous illegal activities such as murder, robbery, and other issues abhorred by society. However, the country was organized into different groups which h had varied beliefs. As a result, they had different ways of punishing criminals and ensuring that justice prevails. Although some of the actions conducted against offenders were considered humans, they served as punished and were meant to deter people from participating in criminal acts. Despite the numerous rules, formal criminal justices began to take shape when religion and the colonial government began to dominate the people’s actions.

Religious Governance

Religious belief became strong in India, and people began to adopt religious laws to guide their activities in society. The main dominant religions were Muslim and Hinduism. Each religious group was, however, punished according to their laws. Ahmad illustrates that Muslim rules prevailed over other spiritual practices because it was the most popular religion.1 This implies that most of the Indians adhered to the Islamic laws; hence they were required to conduct themselves in a manner that does not contract the Quran. Therefore, any person who went against the law was punished accordingly based on the teachings of the Quran. Ahmad also acknowledges that criminal justice was modified by the regulations and customs of the Mughal administration.2 The Mughal authorities exercised their power in a more decentralized fashion where large urban areas were required to dispense justice. However, the leaders situated in the urban setups were required by the Mughal emperor to dispense justice strictly according to the Mughal laws even though customary and local practices were incorporated into the system. As a result, the municipalities had legal autonomy to enforce laws in their jurisdiction, although the rules had to be in harmony with the emperor’s decrees.

British Colonial

In 1601, the British introduced English law, and the British East India Company exercised it. Queen Elizabeth granted the royal charter to the company, and it was authorized to enact laws in their territory. However, their autonomous laws were barred from contradicting those of the motherland, England. Additionally, the crown was allowed to exercise jurisprudence in all the territories that Mughals provided the leasing rights. During this period, British law could only be administered to the British subjects under the jurisdiction of the English East India Company. However, the local population was still under the Mughals’ laws. This implies that the Mughal’s laws punished local offenders while the British in the area were punished by the English East India Company’s English laws.

The subsequent charters of 1609 and 1661 empowered the company and allowed it to make its laws without England’s interference. The expansion was mainly done by King Charles II, who deemed it fit for the company to make its laws, and any action taken in India could not be interfered with from England. East India Company became independent, thus allowing the company to pass any law, even those that could contradict the English laws. As a result, the company had to function as a de-facto ruler in India because of the absolute legal jurisdiction.

The 1726 charter empowered the councils and governors to make by-laws that could control the activities taking place within their territory. The laws also allowed them to instill penalties and pain to those who disobeyed the regulations imposed.3 However, the pain and punishment would be reasonable and conform to the laws that governed England. The charter also introduced the mayor’s court in several towns within India. Also referred to as the Judicial Charter, the civil courts introduced were controlled by the mayor and nine elderly men. However, the criminal courts were ruled by five council members; the governor also headed it. The 1753 Charter enabled the expansion further, and the company no longer exercised its authority over trade but engaged in increasing its jurisdiction over Indian communities.

As the British rules became popular across India, the criminal laws initially derived from Muslim values started to lose weight. The British rulers n4gan to impose British regulations, and the number of Muslim populations begun to decrease. Moreover, the court system began to adopt the strategy of punishing people through the British law system. Although the company was allowed to enact laws and incorporated local laws into their system, the criminal justice system primarily depended on England’s English laws, which thwarted the traditional dispensation of justice that had predominantly governed the Indians for centuries.

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The Origin of Justice in Ancient Indian Civilization

After introducing the British law in India, which was sporadically spreading across India, the locals began to resist the new rules. This was mainly because they had traditional laws that were being overruled as the English laws became superior. As a result, the nation decided to make numerous changes in its rules to gain acceptance. The changes in ancient Indian civilization were mainly the Panchayat system and the East India Judges Act.

Panchayat System

After the degradation of the traditional Muslim laws, Wilk attempted to revive the panchayat system of trial. He encouraged the rulers in India to equip themselves with Hindoo Panchayet to help govern India effectively.4 Wilk acknowledged that India needed leaders who were well conversant with the traditions and methods of conflict resolution since the regulations imposed by the colonial masters were receiving significant resistance, and in some cases, they failed to work.5 He wanted to revive the ancient Indian institutions because he was inspired by Malcolm, an advocate of the panchayat system.6

Malcolm believed in two aspects of panchayat: First, the serving of justice through investigations conducted by tribunals and the results transmitted for a chief ruler for justice dispensation7. The revised system ensured that before any individual was convicted for an alleged crime, the claims had to be investigated, and the findings were transferred to the ruler who penalized the criminal. Second, the panchayat system proposed the formation of independent tribunals to mediate and arbitrate. The independent tribunal included locals, government officers, and class leaders.

Moreover, Sir Thomas Munro also advocated for common law in India, and Punchayet was recommended as the applicable law of governance. The plan was adopted in 1814 after the courts experienced a backlog of cases.8 Munro advocated for reorganizing the justice system in India since he viewed the existing justice system as expensive, and the expenses were to be lowered by adopting a suitable design that could provide fair justice while using minimal costs. Also, in the recommendations, Munro proposed a village judicial system in solving civil disputes.

Modern India Criminal Justice System

The modern Indian criminal justice system is based on justice systems from across the globe. The legal system’s history can be traced back to the Roman empire, where people were required to act according to the law. In ancient Rome, the courts interpreted the rules and punished the offenders who were brought to them using legal means.9 The legal idea conceived in Rome has been used by several generations and currently influences the justice system across the globe. Even though some variations in how justice is administered in each country, most nations such as India borrowed their current justice system model from the Greek.

After the gain of independence in 1947, the power was vested to Indians. However, the country was again faced with the issues of criminal injustices.10 Access to fair justice has been difficult for several decades, even though the constitution provides a framework for protecting citizens’ rights. Over the years, the law has been regarded as being made for the poor because the rich always avoid prosecution. The political class has further degraded the justice system since they are engaged in numerous corrupt practices and often go against the same laws they have passed in the parliament. The high population in the country has also made it difficult to dispense justice in India.

Due to the challenges in the justice system, the Planning Commission of India established a working group to help the justice department create a 12th five-year plan. The plan was to have five main points that would ensure the effective administration of the judicial process if addressed. The recommendations suggested by the working group included strengthening of Alternate Dispute Resolution system, increased funding to the judicial system, establishing morning and evening special courts, and enhancing ICT to develop an innovative e-Court system. As the world is evolving and numerous sectors are adopting technology, judicial processes are also encouraged to use the same system. The planning common noted that utilizing the ICT will ensure good data storage and effective administration of justice. It will help reduce backlogs and solve losing files in the courts, especially where high-profile cases are involved.

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The constitution has strengthened the laws that affect establishing an independent judicial system and an active civil society. The Independent judicial system has ensured that the judiciary is made independent is left to run their affairs without. In most cases, the executive and the legislative arms of government often interfere with the judiciary’s affairs because of the conflict of interest. However, the owners that have been put in the constitution ensure that the court is independent. Additionally, the active civil society ensures that the judiciary performs its role as stated in the constitution because it acts as a watchdog.

Additionally, the establishment of The National Legal Services Authority (NALSA) in 1987 has enabled many poor Indians to access free legal services. Initially, justice was regarded as an affair of the rich people because only wealthy people could afford it. As a result, many people could not access justice since India is one of the countries with many impoverished people in the world. The department of justice has also collaborated with United Nations Development Program to ensure that the justice system is sustainable and able to adhere to the principles of equality, liberty, and fraternity.11 Being that India is one of the UN member states, its laws must be in harmony with all the organs of the UN. Therefore, it has to respect humanity and legally dispense justice, and respect both the local and the international laws.

In contrast to what the constitution states, the judicial system has worsened over the years despite the numerous actions to provide quality service. The poor delivery of services is caused by enormous backlogs, delays, and judicial pendency.12 According to Mudgal, the political class prefers a judiciary to easily manipulate to champion their interests because most of them face criminal charges.13As a result, the police reforms have not been implemented, and numerous supreme court rulings have been violated. Moreover, the prison system has faced multiple challenges. The prisons across India are currently overcrowded due to the numerous criminals that are jailed. The judicial systems are also overwhelmed, and police brutality shows that the legal aids right stipulated in the constitution is far from being achieved. Therefore, the justice system still needs numerous reforms for every person to get free and fair justice.

Conclusion

In conclusion, the criminal justice system has changed significantly over the past decades. Technology has been incorporated into the system, and most Indians can now access the free legal system without paying any fees. Moreover, the judiciary has been made independent, and the civil society acts as a watchdog to the judiciary, thus offering an oversight authority. The government has also formed a partnership with international bodies to ensure that the country meets the modern democratic countries’ justice system’s standards. Although several reforms have been made, numerous challenges are affecting the full implementation of the system. Therefore, for the reforms to be realized effectively, those in authority must learn to respect the verdicts.

References

Ahmad, Sk Ehtesham Uddin. 2012. “Colonial Reshaping of Criminal Law Before the Code of 1860.” Proceedings of the Indian History Congress 73: 553-62.

Ganguly, Chawm. 2012. “Dr. Ashwani Kumar Inaugurates International Conference on Equitable Access to Justice: Legal Aid and Legal Empowerment.” Core Sector Communique. Web.

Jaffe, James A. 2014. “Custom, Identity, and the Jury in India, 1800-1832.” The Historical Journal 57 (1): 131-55.

May, Larry. 2019. Ancient Legal Thought: Equity, Justice, and Humaneness from Hammurabi and the Pharaohs to Justinian and the Talmud. Cambridge: Cambridge University Press.

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Mudgal, Vipul. 2019. “Reforming India’s Broken Criminal Justice System.” The Hindustan Times, Web.

Shahidullah, Shahid M. 2017. Crime, Criminal Justice, and the Evolving Science of Criminology in South Asia. London: Palgrave Macmillan UK.

United Nations Centre Against Apartheid. 1971. Special Committee on Apartheid Hears Judge William H. Booth: New York: Department of Political and Security Council Affairs.

Footnotes

  • 1. Sk Ehtesham Uddin Ahmad. “Colonial Reshaping of Criminal Law Before the Code of 1860.” Proceedings of the Indian History Congress 73 (2012): 553.
  • 2. Ibid, 553.
  • 3. Ibid, p.554.
  • 4. James A. Jaffe, “Custom, Identity, and the Jury in India, 1800-1832.” The Historical Journal 57, no. 1 (2014): 138.
  • 5. Shahid M. Shahidullah, Crime, Criminal Justice, and the Evolving Science of Criminology in South Asia. London: Palgrave Macmillan UK, 2017.
  • 6. James A. Jaffe, “Custom, Identity, and the Jury in India, 1800-1832,” The Historical Journal 57, no. 1 (2014): 139.
  • 7. Ibid, p.140.
  • 8. Ibid, 142.
  • 9. Larry May, “Ancient Legal Thought: Equity, Justice, and Humaneness from Hammurabi and the Pharaohs to Justinian and the Talmud,” Cambridge: Cambridge University Press, 2019.
  • 10. Chawm Gangluly, 2012. “Dr. Ashwani Kumar Inaugurates International Conference on Equitable Access to
  • Justice: Legal Aid and Legal Empowerment,” Core Sector Communique
  • 11. United Nations Centre Against Apartheid. Special Committee on Apartheid Hears Judge William H. Booth: New York: Department of Political and Security Council Affairs, 1971.
  • 12. Vipul Mugdal, “Reforming India’s Broken Criminal Justice System,” The Hindustan Times, February 25, 2021
  • 13. Ibid.

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