The Indian Criminal Justice System as we know today is not a modern development. The system finds its origins from pre-historic and ancient periods. The early civilizations did not have a well- distinguished framework between civil and criminal laws. The first sign of distinction can be observed to have established during the Norman Invasion of England.
The Criminal Justice System includes institutions, agencies and processes established by a government to control crime in the country. The objective of Criminal Justice System is to punish the guilty and protect the innocent. The criminal law in India is contained in a number of sources; The Indian Penal Code (1860), The Protection of Civil Rights Act (1955), Dowry Prohibition Act (1961), and the Scheduled Caste and Scheduled Tribes Act (1989). The criminal law and procedures are mentioned in the concurrent list of the seventh schedule in the Constitution.
Criminal Justice System in Ancient Times
The Arthashastra is written by the founder of the Great Mauryan Empire Kautilya also known as Chanakya in the 4th century BC. The book covers a wide range of topics like politics, strategy taxation, fiscal policies, accounting systems, civil rules, national as well as international trade, statecraft and legal systems.
According to Kautilya, it is the essential duty of the government to maintain order. He states that the ultimate source of all law is dharma. He emphasizes on duties of the King in maintaining law and order in the society. The King is looked upon as the protector of Dharma. He described the four legs of law as, Dharma- Sacred Law, Vyavahara- Evidence, Charitra- History, Rajasasana- Edicts of King. Any matter of dispute shall be judged with accordance to these four bases of justice.
The Ancient Smriti writers were well aware of the various purposes to be served by punishing the criminals.
There were mainly four methods of punishment:
- By gentle admonition
- By severe proof
- By fine or penalty
- By corporal punishment
In Ancient India there existed a systematic and distinct set of criminal law. In the ancient society, the victim himself had to punish the offender through retaliatory and revengeful methods.
Mauryan Era- The King is considered as the head of justice. He ruled on all matters of significant consequence. During the Mauryan era, two types of courts were established; Dharmastheya dealing with civil matters, Kantakasodhana dealing with criminal matters. Punishment was severe even for small offences. The criminal code was harsh and enforced strictly.
Gupta Era- The Gupta Period had well defined civil and criminal rules. The King’s decision was considered absolute. The criminal laws during the Gupta period were not as extreme as in the Mauryan period.
Criminal Justice System in Medieval Times
The beginning of the 8th century AD, India was subjected to a series of invasions by the Mughals. The Shara was followed by all Sultans and Mughal Emperors. Contrary to the provisions under the Hindu law, all crimes were not considered as injuries to the State under the Muslim Criminal Law. One of the striking features of Muslim Criminal Law is that it was treated as a branch of private law rather than public.
A complaint was presented before the court either personally or through a representative. Every criminal was attached to a public prosecutor known as Mohtsaib. The court was given the power to call the accused and begin the hearing of the cases. The burden of proof always lied on the accused and accusation itself was no proof.
The Muslim Criminal Law broadly classified crimes under three categories:
- Crimes against God
- Crimes against the State
- Crimes against Private individuals
The three methods of punishment were recognized under the Muslim Criminal Law:
- Hadd- It meant specific penalties for specific offences. The objective was to prescribe, define and fix the nature, quantity and quality of punishments for certain offences which regarded the society as anti- social or anti- religious.
- Tazir- It meant prohibition. They were inflicted at the discretion of the judges as they were no fixed rules to prescribe this form of punishment.
- Qisas- It meant retaliation.
Under the Muslim Criminal Law, evidence was classified by the Hanafi Law. The law of evidence was prescribed for proving an offence was highly technical. Some rules of the evidence were:
- No capital sentence could be inflicted on a Muslim on the evidence of a non-Muslim.
- Evidence given by one Muslim was considered as equivalent to two non- muslims.
- Evidence given by two women was considered as equivalent to one man.
- Evidence provided should be direct and not circumstantial.
The Mughals had established a system known as the Kotwal System in cities and the Chowkidar system in villages. The Fauzdar Court as well as the Kotwals tried all petty criminal cases concerning security and suspected criminals. The duty of the Kotwal was to check the number of prisoners and ascertain the answers to the charges against them.
Criminal Justice System in British Era
Under the colonial rule of the British, systems changed. The first plan to modify the Muslim Criminal Law was initiated by Lord Cornwallis. He overruled crucial Muslim Laws.
All criminal cases were dealt with in the Mofussil Faujdari Adalat that was formed in each district. The court had been given the authority to solve and punish criminals, however, it did not have the power to give death sentence.
In the year 1833, an Indian Law Commission was formed by the British Government to study the existing laws, jurisdiction of courts, principles of laws in India. The most vital contribution of the Indian Law Commission was the formation of the Indian Penal Code. This was submitted in the report by Lord Macaulay in 1837 which eventually was passed as a law in 1860. Another essential law that was codified was the Code of Criminal Procedure. A lot of changes had been made in the legal code during the period of 1833- 1860. Initially, the British administrators were very severe, intending to suppress crime. However, as the society developed and stabilized many new rules came in place.
A new commission had been appointed for the establishment of High Courts in India under the Charter of 1853. Upon the recommendations of this commission the Indian High Courts Act, 1861 had been authorized.
Criminal Justice System in Present Times
The first attempt to reform the criminal justice system in India was taken by the former Indian Home Secretary N.N Vohra. The Vohra Committee studies and analyzed the issue of criminalization of politics and of the nexus among criminals, politicians and bureaucrats in India. The committee reported how money power is being utilized to develop muscle power network which is being used mainly during elections. The committee suggested that there is an essential need to set up intelligence agencies to deal with the issue.
In the year 2000, another attempt was made to reform the criminal justice system, headed by Justice V.S Mali Math. The Mali Math committee submitted its report to the former Deputy Prime Minister L.K Advani. The Mali Math Committee examined the fundamental principles of criminal law. The Committee focused more on the rights of the victim. A few important recommendations made by the Mali Math Committee were :-
- Right to Silence- The committee recommended a modification to Article 20(3) of the Constitution, in a way that it provides protection to the accused from being compelled to be a witness against himself.
- Right of Accused- The committee suggested the formulation a charter that should be available in all languages. The charter would help the accused become aware of his or her rights, enforcement of the rights and the respective authority to approach in case of denial.
- Presumption of Innocence- The committee has recommended the courts to follow ‘proof beyond reasonable doubt’ as the basis to convict an accused in criminal cases.
- Victim Compensation Fund- The committee suggested the creation of a victim compensation fund under the victim compensation law. The assets confiscated from the organized crimes can be made part of the fund.
- Classification of Offences- The committee has recommended classification of crimes on the basis of five codes, namely: –
- (a.) Economic Code
- (b.) Criminal Code
- (c.) Correctional Code
- (d.) Social Welfare Code
- (e.) Other Offences Code
- Periodic Review- The committee recommended that the criminal justice system shall be reviewed periodically by a committee constituted by the President of India.
In 2007, N.R Madhav Menon, head of the 4 members committee, was entrusted to draft the National Policy on Criminal Justice. The committee focused on reclassifying criminal offences into four codes on the basis of severity and appropriate response for better management and functioning of the criminal justice system. The recommendations made by this committee were as follows: –
(I) Reclassify Codes:
(a.) Social Welfare Offences Code- Punishment should focus on reparation or restitution.
(b.) Correctional Offences Code- It involves offences that have the provision of imprisonment of up to three years.
(c.) Grave Offences Code- It involves offences that have the provision of imprisonment of beyond three years.
(d.) Economic Offences Code- It involves offences related to economic security and other financial laws.
India’s legal framework has undergone several transformations depending upon the situation. The government has made several vital reforms which are needed in the current system, which are as follows:
- Lok Adalat- With the enactment of the Legal Services Authority Act of 1987, Lok Adalat have been provided statutory status. The purpose of a Lok Adalat is to reduce the dependency of cases in courts.
- National Judicial Academy- It has been established by the government to provide judicial officers with adequate training and service.
- Mediation- The main objective of mediation is to make the process to reach to remedy or consensual solution between two parties easier.
- Legal Service Authority- It has been implemented by the Parliament to provide the weaker section of the society, with free and skilled legal service.
The Criminal Justice System in India is presently is highly uncertain and unpopular due to inefficient mechanisms and ineffective remedies. Presently, nearly thirty million cases are still pending in the system. The system takes a long period of time to bring justice to the victim. The number of crimes has increased rapidly and the nature of crime is becoming complex day by day due to rapid technological advancement. Consequently, a lot of the laws in present are outdated and not encompassing the new era crimes. All these flaws in the system have led to the public not relying, not having faith in the justice system.
Author: Arisia K,