Updated: Jul 31, 2021
What is meant by the precolonial notion of crime? Discuss with relation to Hindu & Muslim Law Elaborate the evolution of crime in the pre-colonial era.
Ancient Hindu Criminal Law - Before the conquest of Indian by the Muslim the penal law prevailing in India was the Hindu Criminal Law. It is now well established that in ancient India there existed a systematic and well defined criminal law. The punishment of a criminal was considered to be a sort of expiation that mover his character. Ancient Smriti writers were also fully aware of various purposes served by punishing the criminals. Manu, Yajnavalkya and Brihaspati state that there were four methods of punishment, namely, by gentle admonition, by server reproof, by fine and by corpo¬real punishment and declare that these punishments shall be inflicted separately or together accord¬ing to the nature of the offence. The punishments served four main purposes, namely,
(1) to meet the urge of the person who had suffered
(2) revenge or retaliation
(3) as a deterrent, and preventive measures and
(4) reformation or redemption of the evildoer.
THE CHARACTERISTICS OF MOHAMMEDAN LAW OF CRIMES
(a) General - According to the Muslim jurisprudence, there was no clear-cut distinction be¬tween public law and private law. In modern State today there is a clear cut distinction between public law and private law and criminal law is considered to be a part of public law. In modern times, a crime is treated as an offence against the State and generally, the State is the prosecutor. Only in exceptional cases, prosecution of a crime depends on the option of the victim of the offence. But the. spirit of Mohammedan law crimes, (as it was of several ancient laws of crimes,) was to redress the injured rather than to treat crime as an offence against the State and society. Nevertheless, Mohammedan law of crimes classified crimes into two categories, i.e., 'Crimes against God’ and 'crimes against man’. In the class of .crimes against God, offences such as drunkenness and adultery were included. They were considered to be crimes against God, offences such as drunkenness and adultery were included! They were considered to be crimes of a more serious nature In the second category, i.e., crimes against man, crimes such as murder and robbery were included. These crimes were considered to be offences against the victim or his near relatives. In the case of crimes against God, the State would take the initiative and the offender would be punished. Bat in the case of crimes against man, the initiative for prosecution, was left to the victim or the hairs of the victim. Thus, serious crimes like murder and robbery could be punished only if the heirs of the victim or the victim, as the case may be, took the initiative. It was this approach to criminal law that introduced certain irrational elements into the trial and punishment of crimes. These principles of criminal law evolved in a different society under altogether different circumstances were illogical and irrelevant in the 17lh and 18m centuries in India.
(b) Punishments - Mohammedan law classified punishments under four different categories,
Kisa “ ' Kisa meant retaliation. The victim or the relatives of the victim could demand a punishment similar to the offence itself. It was a case of a tooth for a tooth and an eye for an eye or a life for life. Under this category offences like murder, serious injury to the body were included. The .peculiarities of these offences were that no action could be taken unless the victim or the heirs of the victim took the initiative. It was open to them to condone the offence or to accept blood money if they choose to do so. Further, in the case of murder, the heirs of the victim were to personally inflict punishments on the offender. For example, in a case, where the wife had murdered her husband, the children were expected to inflict the death penalty on their mother.
The concept of Kisa led to certain other anomalies. If a person was murdered, Kisa could be claimed only by his heirs. If the heir did not come forward to prosecute the murdered, for one reason or another, the murderer had to be kept in prison till someone came forward to prosecute. Similarly, the position was not clear as to what should happen when there were no heirs to claim Kisa though in practice the ruler claimed Kisa. Similarly, if the heirs were minors the prisoner had to be kept in prison until they attained majority. There was a difference of opinion among the Muslim commentators on this question. Therefore, the judge at his discretion could either allow the adult heirs to prosecute or to keep the prisoner in prison till all the heirs attained majority. Further, if one of the several heirs pardoned the murderer by .accepting Diya (by accepting blood money) other heirs could not claim Kisa. They could only demand their share of the blood money. Thus, the concept of Kisa was primitive, complicated, technical an technical and obscure.
Diya - There were certain offences where the victim of a crime was entitled to blood. money on a certain fixed scale. Further, in the case of Kisa, the victim or his heirs could take blood money, pardon the murderer and compound the offence. Such Diya could be accepted in case of murders, robberies and serious wound ng or maiming.
Hadd - In the .case of certain offences which were known as offences against God, Mohammedan law proscribed punishment of a fixed nature, quantity and quality. In these cases, the judge had no absolute discretion. The word Hadd means boundary or limit. Such a limit was fixed by law and not left to the discretion of the judge. The Hadd punishments were severe and they were in the nature of death by stoning, amputation of a limb or by flogging. For simple offences like accusing the married woman of adultery, the pun shipment was 80 stripes of flogging; for theft, cutting off the right hand or left foot and for Zina, i.e., illicit intercourse the punishment was death. Though the punish¬ment appeared to have been very severe, the severity was mitigated by the rigid rules of evidence. For example, in the case of Zina, there were to be four male eyewitnesses of the actual offence which would almost be impossible, to have. Further, if there was any doubt in the mind of the judge, -regarding the commission of the offence punishable with Hadd, it could be left to Tazeer.
Tazeer - This kind of punishment included discretionary punishments. The nature and the quantity of the punishment were left entirely to the judge. Under this category were included punishments like imprisonment, exile, etc. The bulk of the offence under Muslim criminal law was to be pun¬ished under this category, The offences which invited Kisa or Hadd were very few. Further, even the offence which invited Hacicf or Kisa could come under Tazeer if the required standard of proof was not available and if there was a strong presumption of the offence. The doctrine to Tazeercould is invoked both in the case of Offences against man and against God.