EVOLUTION OF CRIMINAL JURISPRUDENCE IN INDIA

Criminal law has to do with relations between the misbehaving individual and his government. Criminal law establishes rules of conduct; their breach, if prosecuted and conviction follows, results in punishment. -Lawrence M Friedman

INTRODUCTION

The criminal justice system in India has changed significantly since its introduction. It was shaped by the diverse cultures and religions of India. Ancient principles of Dharma and penal codes of Arthashastra to Indian Penal Code and Bhartiya Nyaya Sanhita, everything has played a role in the evolution of criminal jurisprudence of India. Understanding this journey is useful to appreciate the roots of modern law as well as to assess how history still affects today’s law. 

The recent years saw a change in Criminal Laws of India when Indian Penal Code (IPC) (1860), Code of Criminal Procedure (CrPC), 1973, and Indian Evidence Act, 1872 were replaced by Bharatiya Nyaya Sanhita (BNS), 2023, Bharatiya Nagarik Suraksha Sanhita (BNSS), 2023, and Bharatiya Sakshya Adhiniyam (BSA). The three criminal laws have been in effect from July 1, 2024. 

This blog outlines the evolution of criminal jurisprudence in India, explaining how ancient traditions and foreign rule has affected it, highlighting its key milestones and reforms. 

CRIMINAL LAW IN ANCIENT INDIA

The roots of criminal law in India stretch back to ancient India and the earliest civilisations. There was a sophisticated understanding of law and justice in ancient India. In ancient India, law was deeply affected by religion and the governing morality of the society. The concept of Dharma (which means righteousness) deeply affected personal and social conduct and norms. Some of the major texts of ancient India include Manusmriti, which is one of the earliest legal texts. It laid down laws regarding crime and punishment and emphasised on retributive justice. The Dharamshastras introduced the idea of moral accountability. Crimes were described as sins against cosmic order and not just legal violations. 

Another text was Kautilya’s Arthashastra, which was on governance and the law and focused on legal procedures. It served as a comprehensive guide on the activities of state and law enforcement. It had classified crimes into different types such as theft, assault, and treason. It prescribed punishments for crimes ranging from fines to corporal punishments. Kautilya emphasised on the role of king and called him the ultimate enforcer of justice. Arthashastra contains details for examining evidence through forensic investigation. 

The early texts laid emphasis on duty, evidence and deterrence and showed a surprising modern approach to criminal justice. Justice was also imparted through local assemblies and royal courts where emphasis was laid on restitution. 

CRIMINAL LAW IN THE MEDIEVAL PERIOD

The medieval period saw the rise of Islamic rule, first under the Delhi Sultanate and then under the Mughal Empire. These rulers introduced a Sharia-based criminal justice system. They integrated principles of Quran with the existing customs of the time. 

The Mughals developed a hierarchy in the court system and applied a combination of Sharia law and state policies. The emperor heard appeals which ensured a centralised control over justice. Provisional governors and local officers handled law enforcement. 

Islamic criminal law categorised offences into three types:

1. Hudud crimes, which were serious crimes with fixed punishments such as theft and adultery. 
2. Qisas, which were crimes where victims or their heirs could demand retaliation, such as murder and physical injury. 
3. Ta’zir Crimes, which were lesser offenses where judges had discretionary power to impose fines or imprisonment. 

It is interesting to note that despite the introduction of Islamic law, Hindu laws were also practiced in parallel among Hindu communities which led to a pluralistic legal environment. 

CRIMINAL LAW IN INDIA DURING BRITISH COLONISATION

The British East India Company entered India in the 17th century. The British brought significant changes to India’s criminal justice system. Initially, the British adopted the policy of non-interference in local legal traditions but as their territorial control expanded, they started a standardised legal system. Hence, the Supreme Court was established in 1773 in Calcutta, which led to the introduction of English common law principles. Warren Hastings’ Judicial Plan of 1772 created a two-fold court system. There were Diwani Adalats for civil matters (applying Hindu and Muslim personal laws). Faujdari Adalats for criminal cases (initially following Islamic law but later modified by British judges).

Eventually, the British brought forward codified laws creating a centralised legal system. Lord Macaulay drafted the Indian Penal Code, 1870. It defined crimes and spelled out punishments. Procedural laws such as Code of Criminal Procedure (CrPC), 1898 and Indian Evidence Act, 1872 also came into existence during the British colonisation period. 

The British used laws as a means of control over the colonised India. Repressive provisions were included, such as Sedition (Section 124A in order to suppress nationalist movements. The justice system was discriminatory in nature as Europeans received lighter punishment under the Ilbert Bill of 1883. The era also saw neglect of traditional bodies such as panchayats. 

CRIMINAL LAW IN THE POST-INDEPENDENCE ERA 

When India gained independence in 1947, it continued the use of the colonial laws but aimed at the transformation of the system into a justice system with democratic values and fundamental rights. The constitution of India came into picture in 1950 and introduced safeguards while retaining the Indian Penal Code (IPC), Code of Criminal Procedure (CrPC) and Indian Evidence Act, 1872. The next decades saw a remarkable evolution both in the legislature and in the judiciary. 

The constitution established protections for accused persons such as Article 20 (Prohibited ex-post facto laws, double jeopardy and self-incrimination), Article 21 (Right to life and personal liberty) and Article 22 (provided safeguards against arbitrary arrest and detention). These provisions provided space for judicial activism, fundamentally altering the criminal justice system. 

Major legislative reforms:

The criminal law amendment act, 1983 introduced stricter penalties for custodial violence and police brutality after the Mathura rape case (1972). The Unlawful Activities Prevention Act (UAPA), 1967 remains as the main anti-terror legislation but it is criticised for its stringent bail conditions. Criminal Law Amendment Act of 2013 was enacted after the Nirbhaya rape case. It introduced fast-track courts and criminalised stalking and voyeurism. In 2018, death penalty was introduced for child rape cases which was brought after the public outrage over the child sexual abuse cases. 

Judicial evolution

Public Interest Litigation (PIL) was used as a powerful tool for reform in criminal justice reform. Vishakha guidelines (1997) laid down a framework for the introduction of the POSH Act (Prevention of sexual harassment at workplace). Right to Privacy was introduced in 2017 in Justice K.S. Puttaswamy case which impacted how cybercrime was investigated. In 2018, in the case of Navtej Singh Johar v. Union of India (2018), Section 377 was overturned and homosexuality was decriminalised. 

CONTEMPORARY REFORMS

The Parliament enacted three important legislations in 2023: the Bharatiya Nyaya Sanhita (BNS), the Bharatiya Nagarik Suraksha Sanhita (BNSS) and the Bharatiya Sakshya Adhiniyam (BSA). These laws aim to replace the colonial-era Indian Penal Code, Code of Criminal Procedure, and Indian Evidence Act, respectively, aligning the legal framework with contemporary societal needs and technological advancements.

Bhartiya Nyaya Sanhita (BNS), 2023

Introduces many progressive reforms, such as the incorporation of community service as a form of punishment. This shows a movement towards restorative justice that emphasises on rehabilitation over retribution. Offenses eligible for community service include petty theft, defamation, and public misconduct by intoxicated individuals. The BNS also addresses digital offenses such as online fraud and provocative content on social media. 

Bhartiya Nagarik Suraksha Sanhita (BNSS), 2023

BNSS introduces a victim-centric approach and enhances the rights of the victims by ensuring their participation in trials. It also integrates technological advancements to streamline criminal procedures such as digital FIRs, video conferencing for court proceedings and electronic summons. 

Bharatiya Sakshya Adhiniyam (BSA), 2023

BSA adds a modern approach to evidence law by allowing electronic and digital records as admissible evidence. Section 63 of the BSA outlines the criteria for admitting electronic records, ensuring they hold the same validity as traditional documents. Furthermore, the BSA introduces measures to protect witnesses, such as in-camera proceedings. 

CONCLUSION

The evolution of criminal jurisprudence in India reflects the nation's journey from ancient moral codes to a modern legal framework that seeks to balance justice, equity, and societal needs. From the early reliance on Dharma and customary laws to the codification under British colonial rule with the Indian Penal Code (IPC) of 1860, India's legal system has continually adapted to changing societal contexts. 

After Independence, India retained much of its laws from the colonial legacy but is gradually transitioning to a just criminal law system that addresses the needs of the day. The recent enactment of the Bharatiya Nyaya Sanhita (BNS), Bharatiya Nagarik Suraksha Sanhita (BNSS), and Bharatiya Sakshya Adhiniyam (BSA) in 2023 marks a significant shift towards decolonizing the legal system and incorporating provisions that address modern crimes, such as cyber offenses, and emphasize victim-centric approaches. 

These reforms also show the importance of involving technology in the legal process as they expedite it and ensure transparency. To conclude, India’s criminal jurisprudence have undergone many transformations that reflect its changing society. These reforms are a step towards a just criminal system but continuous evolution is essential to meet the evolving needs of the country. 

AUTHOR: SARGUN SINGH

REFERENCES

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