LAW REFORM
Write a short note on:- Law Reforms.
Reforms in Criminal Law by English administration:-
The administrators of the East India Company realized, from time to time, that Mohammedan Law needed to be reformed. It was left to Warren Hastings and Lord Cornwallis to carry out these reforms in a practical manner.
Reforms in the Criminal Law as carried out by Warren Hastings:-
After acquisition of Diwani by the East India Company the need was left to reform the Mohammedan Criminal Law but it was in 1772 that Warren Hastings changed the existing law in order to suppress robberies and dacoities. He even criticized the existing Mohammedan criminal law. In order to regulate the machinery for administration of criminal justice in Bengal, Warren Hastings carried out reforms in 1772, then in 1774 and finally in 1780. He also suggested certain measures for reforms.
Reforms carried out by Lord Cornwallis:-
Lord Cornwallis, when he come to India in 1790, considered seriously the state of the administration of Criminal justice, He realised that there was great need to reform the existing system of criminal law. The reforms that he introduced are enumerated below in a brief manner.
1) Through a Regulation in 1790, Lord Cornwallis made the intention of the criminal as the main factor for determining the punishment. It was to be determined on the basis of general circumstances and evidence gathered.
2) He also laid down that the 'Doctrine of Yusuf and Mohammad' should form the basis for determining the seriousness of crime and not Hanafi's Doctrine.
3) It was left to the next of a kin of a murdered person to remit the penalty of death on murderer.
4) Instead of amputation of arms and legs, he substituted hard labour of fine and imprisonment. This was done in 1791.
5) In 1792, a Regulation was also framed that if the relations of a murdered person refused or neglected the prosecution, the Courts of Circuit were required to send the records of the case to the Sadar Nizamat Adalat for final orders.
6) It was also decided in 1792 that religious tenets of the witness shall not be considered as bar to the conviction of an accused person.
7) The Muslim law of evidence was also modified in 1792.
8) Cornwallis Code—On May 1,1791, a code which came to be known as Cornwallis Code, containing 48 enactment's, was framed. This laid down the general principles for administration of criminal justice. It was this year, i.e. in 1793, that the Regulations framed by the Government were codified according to the prescribed form.
Until-the year 1833, the Governors of Bombay and Madras and the Governor General of Calcutta and their respective Councils were authorised by Acts of Parliament of England to legistate for the territories outside the Presidency towns of Bombay, Madras and Calcutta respectively by means of regulations. On the other hand the Parliament w-s to legistate in respect of the Presidency town itself. As a result of the power aforesaid a number of regulations were passed for the governance of the natives of the country, but they did not touch the Hindu or Mohammedan law. Though the personal laws of Hindus and Mohammedan were exempted from the purview of Regulations, yet they did -n fact modify them in several aspects, in as much as the Mohammedan criminal law in Calcutta and Madras and the Hindu criminal law in Bombay were so much affected by the year 1833 that they lost their original character. It has been said that the regulations were passed with a view to reduce the cruelties and the hardships of these criminal laws and make them "consonant with the British rule", but it may be pointed out that in doing so the criminal law became a patchwork of enactment's so confused that it was the first subject which invited codification.
On the arrival of Lord Macaulay in India the First La Commission was constituted. Lord Macaulay was appointed Chairman of the Commission and three other persons namely Cameron, Macpherson and Anderson were appointed members of the first Law Commission.
During the four years 1834-38 of Lord Macaulay's stay in India the Draft of the Indian Penal Code. was prepared and produced. Lord Macaulay was the sole or the principal author of the Draft of Indian penal Code prepared by the 18, Law Commission of India, Although the draft of Indian Penal Code was ready by the end of 1838, yet it could be passed only in the year 1860. Due to various causes it could not be passed earlier. Codification of criminal law was not favoured by some of the Judges in India, but the Indian Mutiny of 1857, culminated in the culm passing of the Indian Penal Code.
Certainly Indian Penal Code has been so masterly drafted that sir Stephen, the well-known jurist on criminal law has remarked that, "It seems to me the most remarkable, as I think it bids fair to be the most lasting monument of its principal author. There is a fashion in literature which may diminish the influence and popularity of his other writings but the Penal Code has triumphantly supported the test of experience for upwards of twenty-one years during which time it has met with a degree of success which can hardly be ascribed to any statute of anything approaching the same dimensions,"
It is correct to say that while the draft, which latter became Indian Penal Code, remained a draft for about twenty-one years, it received during this time a revision at the hands of the professional lawyer sir Barnes peacock, who was then law member, and who later became the Chief Justice of the Supreme Court of Calcutta and later rose to be a member of the Judicial Committee of the Privy Council.
Now at the end of Mutiny the governance of India was transferred from the hands of Company to the Crown, and an extra-ordinary impetus was given to legislation by the change. The Indian Penal Code was, therefore, passed as Act XLV of 1860 and shortly afterwards Act XXV of 1861 was enacted which is called the Criminal Procedure Code.
Now considering the stages of progress which the Penal Law of India underwent, it would not be wrong to say that the present Indian, Penal Code does not contain anything of Mohammedan criminal law, The Indian Penal Code may be described as the Criminal Law of England freed from all technicalities and superfluities, systematically arranged and modified in some few particulars to suit the circumstances of British India.
