Process of Enactment of Penal Code, 1860

PROCESS OF THE ENACTMENT OF PENAL CODE, 1860

Detailed Study.

It is well known that the Company took over the administration of civil justice after assuming the authority of Dewan of Bengal, Bihar and Orissa in 1765. A well organised structure of judicial system, i.e. civil courts and criminal courts existed at the time of Company‟s acquisition of Dewani rights. It appears that with a highly developed law as well as legal system the Company took over the Dewani of Bengal, Bihar and Orissa. It is said earlier that initially the colonial authority did not interfere with the “native” laws. According to Derret, there were three reasons behind the Company‟s adherence to the indigenous laws: 

(a) at the time when Hastings‟s Plan of 1772 was adopted it was the time of French Revolution and “all Europe was accustomed to a confusion of local laws” 
(b) for Hastings, and the administrator even to the lawyers of the generation the application of a separate set of laws derived from religion was not an easy task and 
(c) the colonial power just adhered to the Portuguese policy to leave the judicial administration to “natives” themselves.¹However, from Hastings‟s time the British colonial power started taking an interest in the native's administration of justice system as a number of intellectual‟s study² of the native system and a new set of cadre of civil servants came into being by this time.

Two events, it appears, had affected the administration of Islamic law in British India a great deal during the nineteenth century: replacement of existing Islamic laws through direct legislation in the western sense and withdrawal of the native law officers from the court. English legal doctrines, it appears, came to replace the existing Islamic laws in India as a direct consequence of codification of laws. In addition, codification of laws contributed to restrict Islamic law to questions related only to the „family relations and Statuses which culminated in the development of a new branch of law later which was classified as „personal law‟. Besides, the withdrawal of the native judicial officers in 1864³, who had been attached to the court to provide explanation of religious doctrines, contributed to establish absolute control over the judicial administration by the British colonial authority. As a result the English judges became the sole interpreters of the religious laws in India.⁴

Unlike criminal law a reservation, it is pertinent to mention, had been maintained on the application of “native” religious laws, from Hastings‟s plan of 1772 to the whole period of the British regulations in India. Despite this promise to respect the personal laws of the “natives” it appears that the colonial authority invested their utmost endeavour to develop a legal system based on the English ideology which would support their policy in India in the long run. Especially, the event of withdrawal of the “native” law officers from the courts in the guise of re-organisation of the courts brought an occasion for the British judges to interpret Islamic law independently. These „semi-autonomous judges‟ of the British India relied mostly on the translations of some traditional texts, i.e., Hedaya, Fatawa-e-Alamgiri and so on to resolve disputes involving interpretation of Shariah instead of applying the Islamic law from its historical and philosophical perspective.⁵ Besides, the colonial authority sought to codify the “native‟s” religious laws on the ground, allegedly, that the language of the religious texts of the two religions (Muslim & Hindu) was unknown to the colonial authority. It appears, on the contrary, that not only the alien language of the religious texts but also lack of trust on the native law officers was one of the major causes which drove the colonial authority to codify native laws. For example, in the words of Sir William Jones:

"If we give judgment only from the opinions of the native lawyers and scholars, we can never be sure, that we have not been deceived by them. It would be absurd and unjust to pass an indiscriminate censure on so considerable a body of men, but my experience justifies me in declaring, that I could not with an easy conscience concur in a decision merely on the written opinion of native lawyers, in any cause in which they could have the remotest interest in misleading the court.”⁶

It is not surprising that the maulavis were mistrusted. British accusations of inconsistency stemmed partially from genuine questions of probity that may have been linked to a low official salary. More importantly, suspicions arose from the diversity of opinion that any number of legal questions might generate. Islamic legal theories had always provided leeway for judicial discretion in applying Shariah principles. Operating with their own preconceptions, British judges seemed unable to accept that there might be genuine differences of opinion on a point of law. When maulavis did disagree, their opinions often simply reflected the inherent inadequacies of the British text based approach.⁷ In reality, it might not be true. It may raise a question that whether it was a trick of the British to remove the maulavis from the courts. Because when the maulavis gave their fatwa inconsistent with the British notion, they were accused of taking bribe or the British judges thought that they did not give the accurate opinion on a point of law. It seems that the British judges removed the maulavis intentionally from the courts because at one time they wanted to be the sole interpreter of the law of the courts. 

Warren Hastings Plan, 1772

After the acquisition of Dewani rights by the East India Company, the question arose whether the company could alter the criminal law then in force in India. The first interference with the Islamic criminal law came in 1772 when Warren Hastings changed the existing law regarding dacoity to suppress the robbers and dacoits. Warren Hastings took over the Governorship of Bengal in 1772 and under him the famous judicial plan, which came to be known as the Warren Hastings plan was prepared. Hastings, explaining the plan for better governance of Bengal to the court of directors of the Company, stated that it would establish the Company‟s system of governance on „a most equitable, solid and permanent footing‟.
The preamble to the Regulation 1772 pointed out that for some time, the peace of the country had been very much disturbed by bands of dacoits, who not only infested the high roads, but often plundered whole villages, burnt houses, and murdered the inhabitants; these out-laws had eluded every attempt of Government for detecting and bringing them to justice. Warren Hastings also pointed out in his letter, “The Islamic criminal law often obliges the Sovereign to interpose and to prevent the guilty from escaping with impunity and to strike at the root of such disorders as the law may not reach…” ⁸ It is therefore became the indispensable duty of the Government to try the most rigorous means to punish the dacoits. Apart from this change, Warren Hastings left the Islamic criminal law untouched in 1772. In spite of his predilections in favour of the indigenous laws generally, Warren Hastings was convinced of the need of reforming the Islamic criminal law in certain respects. Accordingly, in 1773, he formulated certain proposal for its modification.

• Firstly, he suggested that intention and not the nature of the weapon used be made the test of willful murder. If the intention of the murderer clearly be proved, no distinction should be made with respect to the weapon by which the crime was committed. The murderer should suffer death, and the fine be remitted. 
• Secondly, Warren Hastings suggested abolition of the privileges granted by the Islamic criminal law to the sons or the nearest of kin to pardon the murderers of their parents or kinsmen.
• Thirdly, he advocated abolition of the rule which required the children, or the nearest of kin of the deceased, to execute the sentence passed on the murderers of their parents or kinsmen.
• Fourthly, the fine imposed for murder should be proportionate not only to the nature of the crime, but both the nature and the degree of the crime, and to the substance and means of the criminal.⁹

Warren Hastings submitted his proposal to the council for consideration and approval. The council took no decision thereon as it regarded it a very fragile matter to change the established law and, therefore, it thought that no rapid action should be taken in this regard. Because of the dichotomy which was maintained at the time between the Dewani and the Nizamat, the council was hesitant on the question whether it should intervene in any way in the law of crimes and seek to modify it. In spite of Warren Hastings strong advocacy and pleading in favour of the proposed changes, the matter was not proceeded with to any conclusion and nothing further seems to have happened in this regard for the rest of his tenure as the Governor-General.¹⁰ So, Hastings proposal for reforms were not heeded because as expressed by Rankin “The cloudy title of the company to the Nizamat made it slow to alter the criminal law.” ¹¹

Lord Cornwallis Code, 1790

In 1786, Lord Cornwallis came to Bengal as Governor-General. Before his appointment, he had acted as the Commander-in-Chief of the British army in the American War of Independence. Enlisted with vast military and administrative experience, Cornwallis in every direction built on the foundations by his predecessors, and especially by Hastings. From 1772 to 1790, no special effort was made to change the Islamic criminal law. Cornwallis found the judicial machinery suffering from much confusion, diversity of practice and uncertainty of jurisdiction. His reforms were aimed at removing these defects. Cornwallis concentrated his attention on removing two main defects, namely, (a) gross defects of Islamic criminal law and (b) defects in the constitution of courts.¹² However, he carried out the following reforms in criminal laws.

1 J. D. M. Derret, „Justice, Equity and Good Conscience’ in Changing Law in Developing Countries, ed., JND Anderson (London: George Allen and Unwin, 1963), p.114.
2 Charles Hamilton: Hedaya or Guide: A Commentary on the Mussulman Laws, Vol II (London, 1791); Sir William Jones: The Mohammedan Law of Inheritance: With a Commentary. (Oxford University press, 1792); Henry Thomas Colebrook: Essays on the Religion and Philosophy of the Hindus. (London: William & Norgate, 1858).
3 Although the Islamic criminal law was ended in 1832 but the Muftis (law officers) continued to function as native judicial officers in the courts till 1864. The British thought that as the Muftis formed an integral part of the judicial machinery for long time, they (British Administrator) were not courageous enough to remove them from their office immediately. For detail see, M.P. Jain, supra note 12, at p. 381.
 4Anisur Rahman, Islamic Law and Colonial Encounter: On the discourse of „Mohammedan Law‟ in British India. Electronic copy available at: http://ssrn.com/abstract=2170464 [accessed on 12.02. 2013].
5 Ibid.6 Bijoy Kisor Acharyya, Tagore Law Lectures, 1912: Codification in British India, (Calcutta: S.K. Banerji and
Sons, 1994), p.334.7 M. R. Anderson, „Islamic Law and the Colonial Encounter in British India, in Institutions and ideologies: A
SOAS South Asia Reader, ed. David Arnold and Peter Robb (London: Karzon Press Limited, 1993), p. 12.

8 Kulshreshtha, supra note 8, at p. 264. It is noteworthy to mention that the offence like dacoity, robbery of the natives were increased at that time not by the reason of difficulties of Islamic criminal law but by the reason of discontentment of the Indian people to the British rule.
9 M.P. Jain, supra note 12, at p. 372. 
10 Ibid, at p. 373.11 G.C Rankin, supra note 4, at p. 169. 

12 A. Aspinall, Cornwallis in Bengal, The Administrative and Judicial Reforms of Lord Coornwallis in Bengal, Together with accounts of commercial Expansion of the East India Company, 1786-1793, (Manchester University Press, 1931), p. 63.