After Nanda Kumar’s execution, the trial against Warren Hastings and others accused of bribery and corruption ended in acquittals, as Nanda Kumar, who was the main witness, was eliminated by Warren Hastings with the help of Elijah Impey and other judges of the Supreme Court at Calcutta. Such was the effect of the conviction and execution of Nanda Kumar that many native families fled Calcutta, as inhabiting areas there would bring them under the jurisdiction of the Supreme Court and the English Common Law with regard to criminal offences prevalent in eighteenth-century England.
Under such a criminal law system, even a crime like forgery, as Nanda Kumar found out, was considered to be serious enough to merit capital punishment, which in retrospect seems exponentially disproportionate to the crime. The criminal law of England under the Common Law system in the eighteenth century prescribed capital punishment for many offences which are not considered heinous or serious under current laws. The law of crime and punishment in England at the time was labelled ‘a bloody code’ by Charles Smith 3 in 1857. In fact, the law against forgery, which provided for capital punishment, became the rallying point for the reform of English criminal law in the early nineteenth century, which eventually led to abolition of the death penalty for most offences in England. 4
Common law as defined by Black’s Law Dictionary means ‘The body of law derived from judicial decisions, rather than from statutes or constitutions’. It was the system of law which was utilized in England for the determination of legal issues which were not covered by any statute or legislation. This meant that the judges used their own wisdom before coming to a decision without having the advantage of referring to any legislation. According to Chief Justice Hannah of the Arkansas Supreme Court, ‘Common law is a judicially created law that is developed on a case by case basis.’ 5 This system of law was brought to countries like the United States of America, Canada and India by the English when they colonized these countries. The opposite of a common law system would be a civil law system which means that all the laws are written by way of statutes, as opposed to common law being ‘unwritten’ as it is not written down by the legislature and instead relies on case laws. The legal system in India today is a balance between common law and civil law systems, as courts rely on statutes for application of law in harmony with reliance on case laws, or precedents, which leaves room for principles of equity in application of laws and protects us from rigid laws.
Being a common law country, England in the eighteenth century did not have a codification of offences and penalties but had to rely upon judicial precedents and scattered statutes for enforcement of criminal law.
Allow me to explain the difference between a code and other statutes.
A code is a bookshelf, if I may say so, containing various books on a specific subject. Only the legislature (for example, Parliament in India) has the power to add more books, remove books or edit those books on the bookshelf. The difference between a code and other statutes is the difference between a bookshelf with all the books in one place and books lying all over the place.
The term ‘codification’ is attributed to Jeremy Bentham, 6 the principal protagonist of this chapter. He was born on 15 February 1748 in the English countryside and went on to read law at Queen’s College at Oxford University at the very young age of twelve. His age at that time probably explains why he was so afraid of ghosts, a fear which was reinforced due to the dismal surroundings of his living quarters at Oxford. He graduated with a bachelor’s degree in 1763 and entered the practice of law as a barrister at Lincoln’s Inn 7 in London, after which he attained his master’s in 1766 from the same university. It was during his years reading law that he developed a rebellious streak. He was extremely antagonistic to the system of legislation in Common Law England and felt it to be archaic and unscientific. He was especially critical of Sir William Blackstone, 8 a legal luminary of England who was quite prominent on the lecture circuit and who went on to write famous commentaries of law. Bentham says he listened to the lectures but with rebel ears.
Bentham’s career as a barrister never really took off. The main reason was that he considered the laws of England as a mountain of trash, which threw him into despair. He decided to apply himself to reform and started working on a treatise to challenge the ‘lawless science of the law’, the unpublished ‘Critical Elements of Jurisprudence’. Bentham treated legislation both as an art and a science, as opposed to the disarray and chaos of the common law system. He worked on his writings and developed his theories at a small farm in Essex given to him by his father while living frugally on fifty pounds a year.
Bentham was of the view that the greatest possible happiness of the greatest possible numbers was the only measure of right and wrong. This was his principle of utility, or usefulness, which proposed that the good and happiness of the majority of the members of the State is the great standard by which everything related to the State must finally be determined. Thus, he was of the view that ‘the greatest happiness of the greatest numbers’ is the foundation of morals and legislation. 9 He believed in the principle of ‘pleasure and pain’, whereby the measure of good or evil was derived from the amount of pleasure or pain—physical or intellectual—brought about by an act. Bentham admittedly based his utilitarian philosophy on Joseph Priestley’s ‘Essay on the First Principles of Government’ published in 1768, and also on the utilitarian philosophy of eighteenth-century French philosophers Claude Adrien Helvetius and Montesquieu.
Bentham believed that written law should be the only form of law, which should be clear and systematic. For this he felt that ‘codification’ was necessary. He wrote the ‘Draught of the Code for the Organisation of Judicial Establishment in France’ as a criticism of the draft on the same subject proposed by a committee of the National Assembly. In 1792, the French honoured Bentham for his writings in support of democracy and the cause of the French Revolution by bestowing him with the citizenship of France, to which Bentham responded by stating that he was a Royalist in England and a Republican in France. 10
In 1802, the complete manuscripts of Bentham were published in French by his friend Pierre-Etienne-Louis Dumont 11 in a book called Treatise on Legislation 12 which was divided into ‘Principles of the Civil Code’ and ‘Principles of the Penal Code’, which had an immediate effect in England and influenced future legislation by the British Parliament. This treatise bestowed great renown upon Bentham and spread far and wide. In 1803, the Russian empress directed that the treatise be translated into Russian and wanted Bentham to codify Russian civil and penal laws. Similarly, Bentham’s treatise was read avidly in Spain and formed the basis of the later amendment of Spanish laws. His work also spread to Italy, Greece and South America. If written today, his treatise would have qualified as an international bestseller. In 1810, Bentham boasted about his international celebrity in a letter to a cousin named Mulford, ‘Now at length, when I am just ready to drop into the grave, my fame has spread itself all over the civilized world; and, by a selection only that was made 1802 AD, from my papers by a friend, and published in Paris, I am considered as having superseded everything that was written before me on the subject of Legislation.’
Bentham met a Scotsman by the name of James Mill 13 in or about 1808, who had been an editor of a magazine called the Literary Journal and a newspaper called the St. James’ Chronicle in London. Mill was born in 1773 in Scotland in a shoemaker’s family and went on to study at the University of Edinburgh. Mill is renowned for his seminal work The History of British India, which took ten years to write and which was published in 1817. However, Mill had never been to India and was completely ignorant about the country, its cultures and its languages. His book was later criticized to be fraught with inaccuracies due to this reason.
Bentham and Mill went on to become great friends and Mill became a disciple of Bentham and his philosophies. So much so that he named a son James Bentham, one of his nine children, after Jeremy. Bentham had also declared that he was the spiritual fat
her of James Mill, whom he kept around as a neighbour and tenant at various points of time just to keep his company regularly. In 1819, Mill applied for a vacancy in the examiner’s office at India House, the headquarters of the English East India Company. On account of his knowledge of India, and on recommendations of many of his politically influential friends, James Mill was appointed as an ‘assistant to the examiner of India correspondence’. In 1821, he was appointed the second assistant, and in 1823 as the assistant examiner. Eventually, he became the ‘examiner of India correspondence’ in 1830, a post which he held till his death in 1836.
The influence and stature of James Mill within the East India Company and by implication to the governance of British India was underlined by Bentham when he wrote to Raja Ram Mohan Roy in 1828 informing him about Mill’s desire to bring about judicial reforms in India regarding laws of evidence, criminal procedure and penal laws. He conveyed to Roy that Mill, by virtue of his closeness with the governor general, would be successful in the implementation of his plans for reform of judicial administration and procedure in India.
In the second decade of the nineteenth century, events were afoot to restrict the powers of the East India Company. The Company was stripped of its monopoly to trade with India by Parliament in 1813 14 but its political position as the government of British India had been confirmed up till 1834.
In February 1830, the British Parliament set up a committee to ‘enquire into the present state of affairs of the East India Company, and into the trade between Great Britain and China’. This was in response to public demands for cessation of the powers bestowed upon the East India Company and terminating its remaining monopoly over the tea trade with China. The said committee was reconstituted twice, with James Mill being examined by the third such committee on the structure of the system which the East India Company employed for revenue collection in India, a subject which he was an expert on due to his office.
Mill was examined by the fourth committee as well, the examination being more general in nature. It was before this committee that Mill recommended the overhaul of the legislative structure for India. He suggested that a new legislative council for India should be formed comprising of four members: one expert on English law, one experienced servant of the Company, one highly qualified native and one expert on government. He also recommended the overhaul of the judicial procedure and system in India. Over and above his performance before parliamentary committees, Mill was tasked with the preparation of lengthy statements on behalf of the directors of the Company in their interactions and negotiations with the government.
The negotiations and inquiry culminated in the enactment of the Charter Act of 1833 15 which came into effect from 12 April 1834 for the period up to 12 April 1854. The Act put an end to the trading nature of the Company by winding up its commercial activities and terminating its last remaining monopoly over trade with China. The territorial possessions of the East India Company were to be held in trust for the British Crown and continued to be governed through the Board of Control. The Company, originally named the Governor and Company of Merchants of London Trading into the East Indies—which was subsequently changed to United Company of Merchants of England Trading to the East Indies in 1708 after amalgamation with a rival group of traders 16—was officially given the name of the East India Company by way of the Charter Act of 1833.
To avoid the absolute authority of the Crown, the control of Parliament and the Board of Control through the Secret Committee was retained by the Charter. The council of the governor general was to comprise of four members, one member to solely look after legislation. It was empowered to legislate for British India, with similar powers as that of Parliament, over all persons, be they British, Indian or foreigners within the territories under the Company. However, the council could not amend or repeal the Charter Act of 1833 or encroach upon the authority of the Crown or Parliament. The British Parliament also enjoyed a concurrent power to legislate for British Indian territories.
The member nominated to look after legislation was Lord Thomas Babington Macaulay, who was a member of Parliament and the secretary of the Board of Control. 17 The creation of the position of the legislative member was done in line with the recommendations made by James Mill, who wanted a person well versed in the ways of men and philosophy to be a part of the council. Though Macaulay was nominated by the government, the power to appoint him rested with the directors of the East India Company. The chairman and deputy chairman of the Company were very unhappy with the nomination as Macaulay had been one of the foremost critics of the Company and had delivered a monumental speech when the Charter Act was being discussed in the Parliament. 18 However, they based their opposition on the fact that Macaulay was just thirty-three at the time and therefore too young for the job. 19
Macaulay was an advocate for termination of the trading activities of the East India Company and was of the view that, ‘The existence of such a body as this gigantic corporation, this political monster of two natures, subject in one hemisphere, sovereign in another, had never been contemplated by the legislators or judges of former ages.’ Even though he advocated the termination of the Company’s trading activities, he still felt it would be desirable to retain the Company as an organ of the British government over India. While lamenting on the lack of democratic form of government in India:
Macaulay was scathing in his criticism of James Mill. He said:
One gentleman, extremely well acquainted with the affairs of our Eastern Empire, a most valuable servant of the Company, and the author of a History of India, which, though not certainly free from faults, is, I think, on the whole, the greatest historical work which has appeared in our language since that of Gibson—I mean Mr Mill—was examined on this point. That gentleman is well known to be very bold and uncompromising politician. He has written strongly, far too strongly, I think, in favour of pure democracy. He has gone so far as to maintain that no nation which has not a representative legislature, chosen by universal suffrage, enjoys security against oppression. But when he was asked before the Committee of last year whether he thought representative government practicable in India, his answer was, ‘Utterly out of the Question.’ This then is the state in which we are. We have to frame a good government for a country into which, by universal acknowledgment, we cannot introduce those institutions which all our habits, which all the reasonings of European philosophers, which all the history of our own part of the world would lead us to consider as the one great security for good government.
It is quite clear that Macaulay and Mill weren’t really the best of friends; in fact Macaulay referred to Mill as an old enemy. It was to James Mill that the directors of the Company deferred to on the question of Macaulay’s appointment, imagining he would support them in their opposition. However, to the directors’ and Macaulay’s surprise, Mill recommended that Macaulay would be an excellent choice for the position, and if they rejected him they would hardly be able to find a better person for the role. This magnanimity resulted in the repairing of their relationship, and Macaulay in fact consulted Mill on occasion before starting with his role in India. 20 The directors of the East India Company eventually appointed Macaulay to the position with nineteen directors voting in his favour and three against. 21
Having bestowed the council with legislative power, the Charter Act of 1833 provided the council with the assistance of a commission for legal reform in India so that the laws of India may be formed into a code. Macaulay, in his speech, said:
I believe no country has ever stood so much need of a code of laws as India; and I believe, also that there never was a country in which the want might so easily be supplied. I said that there were many points of analogy between the state of that country, after the fall of the Mogul power, and the state of Europe after the fall of the Roman empire. . . . As there were in Europe then, so there are in India now, several systems of law, widely differing from each other, but coexisting and coequal. The indigenous populat
ion has its own law. Each of the successive races of conquerors has brought with it its own peculiar jurisprudence . . . so we have now in our Eastern empire Hindoo law, Mahometan law, Parsee law, English law, perpetually mingling with each other and disturbing each other, varying with person, varying with the place. . . . The only Mahometan book in the nature of a code is the Koran; the only Hindoo book the Institutes. 22 Everybody who knows those books knows that they provide for a very small part of the cases which must arise in every community.
He echoed Bentham, Mill and other advocates of codification when he said, ‘Our principle is simply this: uniformity where you can have it; diversity where you must have it; but in all cases certainty.’ This was a break from the common law system and judge-made laws. This principle is the driving force behind modern Indian legislation till date. 23
3
The Indian Penal Code and Sedition
The first Indian Law Commission was formed under the chairpersonship of Thomas Macaulay in accordance with the Charter Act of 1833. The other members of the commission were John M. Macleod, G.W. Anderson, F. Millett and Charles H. Cameron. As a measure of reform of Indian criminal law, Macaulay wrote a proposal to the governor general recommending the preparation of a penal code which would not merely be a digest of existing customs and regulations but would also be reformatory in nature and framed on the basis of two principles. One, the principle of suppressing crime with the smallest account of suffering, and two, the principle of ascertaining truth at the smallest possible cost of time and money. 1
The Great Repression Page 3