Lord cornwallis

REFORMS IN CRIMINAL JUDICATURE : 1790

The next instalment of judicial reforms from Lord Corn¬ wallis came in the year 1790. This time
the ameliorative measures were adopted in the sphere of criminal law and justice.

The field of criminal law and justice had hitherto been left entirely to the Muslim Law Officers.
The shadow of the Nawab’s authority was still suffered to exist in this sphere. The Mofussil
Fozdary Adalats, established by Warren Hastings in 1772 in the districts, were staffed by the
Kazis, Muftis and Moulvies. The Court of Appeal from these Courts, known as the Sadar
Nizamat Adalat, originally established at Calcutta in 1772, was shifted to Murshidabad in 1775.
This Court used to revise proceedings of the Mofussil Fozdary Adalats, and approved and
disapproved of the sentences of death passed by them. The system of criminal judicature was
under the sup¬ erintendence and control of Mohd. Reza Khan who presided over the Sadar
Nizamat Adalat in the capacity of being the Deputy of the Nawab.

In 1781, Warren Hastings had introduced a scheme of imperfect government control over the
criminal judicature by instituting, what was known as, the Remembrancer of Criminal Courts1.
This measure, however, was weak and ineffective. The Judges of the Mofussil Diwani Adalats
acted as the Magis¬ trates. They were to arrest and apprehend the criminals. In 1787, the
magistrates were authorised to try and sentence those who were guilty of minor offences ; others
had to be dispatch¬ ed to the nearest Fozdary Adalat for trial.

The European British subjects residing in the interior of

the country could not be tried by the Mofussil Fozdary Ada- lats. They were to be tried by the
Supreme Court of Judi¬ cature at Fort William. The Magistrates were, however, authorised to
apprehend any European British subject, who might have rendered himself liable to criminal
prosecution. After making an immediate inquiry into the circumstances of the charge, if the
Magistrate was satisfied that there existed grounds for trial, he was to send such European British
subject to the Presidency for trial in the Supreme Court.

The administration of criminal justice during all these years had been at a very low ebb. The
system in force was notoriously defective. The proceedings of the criminal courts, from the
lowest to the highest, were very unsystematic and dila¬ tory. In every district, jails were
overcrowded ; corruption was rampant in the courts. Murders, dacoities, and other serious crimes
were daily committed with impunity. There was a general feeling that life and property were
insecure and inadequately protected.

The sentences passed by the Sadar Nizamat Adalat were final and irrevocable, and were often
not even notified to the Governor General, through the Remembrancer of the Crimi¬ nal Courts,
until they had been carried into execution ; and even then, such meagre information as the
prisoner’s name and nature of the charge, crime and punishment, alone were revealed. Since the
grounds of the sentence were not divulged, the Governor General in Council had no means of
checking and revising the arbitrary and capricious proceedings of the Nizamat Adalat.

Many of the abuses prevailing in the system of criminal judicature arose directly as a
consequence of the low and inadequate salaries paid to the officers engaged in the administra¬
tion of criminal justice. The salaries were insufficient to support the dignity of their office, to
enable them to maintain their families with ease and comfort, to keep them above temptation and
corruption and inculcate in them a high sense of character, duty, integrity and impartiality. Even
the meagre salaries were not paid regularly. The result was that persons having no edu¬ cation,
traditions and character, persons ‘unqualified and incapable’, persons ‘chosen from the dregs of
fihe people, ignorant, artful and unprincipled’ came to be appointed as criminal judges—an
office of high trust and dignity. It could hardly be imagined that men of family and education
would dedicate the whole of their time to so laborious and dis¬ agreeable an employment, as the
sentencing of persons for crimes, for the mere pittance of salary which could not, posi¬ tively,
afford means of procuring to them more than a bare subsistence, unless some secret motive,
some concealed view o f advantage, some illegal perquisites, prompted them to accept an office
where the reward was disproportionate to the labour involved.

Another cause of malpractices prevailing in the sphere of criminal judicature was the insecurity
of tenure of the fudges. They could be dismissed at any time. Being un¬ certain of the length of
their service and also of the moment when it would be terminated, these Judges of the criminal
courts started collecting money by accepting bribes, so that they might be able to live
comfortably, if and when they were deprived of their positions.

The results of this corruption in the criminal judicature of the country were very unfortunate. All
sorts of vile crimes were rampant in the country. Murders, robberies and dacoities were
committed in the broad daylight with impunity. The prevailing system was dubbed by Shore as a
‘mere system of rapine and plunder.* As one Collector pointed out, ‘Nothing has perhaps more
contributed to the continuance, if not increase, of dacoity, than the belief entertained by the
inhabitants in general, probably on good grounds, of the corruption prevalent in the provincial
Criminal Courts, which, if it exists, may be chiefly owing to the scantiness of the principal
officer’s salary; and nothing is of so much conse¬ quence as to remove such an opinion, for
dacoits will certainly continue their depredations as long as they believe that with part of their
plunder they can procure their exemption from punishment, and no witnesses will ever appear
against them when, from the corruption of the Judge, they believe that their evidence, instead of
bringing the offenders to punishment, will only expose themselves to their resentment and to the
risk of losing their lives or property/ As the system worked, inno¬ cent persons were daily
condemned to suffer death, the most cruel mutilation or perpetual imprisonment, whilst the most
notorious offenders often escaped with impunity.

Another objectionable feature of the judicial system was the immensity of the power that was
lodged in the Judge of the Mofussil Fozdary Adalat in the district. In all cases which did not
involve life or limb, the Judge could at once, on his own authority, pronounce the final judgment.
In capital cases the proceedings before the Mofussil Nizamat Adalat were forwarded to the Sadar
Nizamat Adalat for con¬ firmation of the sentence. That procedure did not constitute any
adequate or effective safeguard against wrongful condem¬ nation. If the Judge had any ulterior
motive in the case, he could always manufacture the records which he sent to the Sadar Nizamat
Adalat for final orders. From the time of their commitment by the Magistrate, prisoners remained
in the custody of the Mofussil Fozdary Judge, who alone decided how long they should remain
in jails before being brought to trial, what witnesses should be summoned, on what points they
should be examined, and in what manner their evidence should be recorded. In these
circumstances the power of the Judge was practically unlimited. Owing to the long distances, the
Sadar Nizamat Adalat was not in a position to keep a close control over the working of the lower
criminal courts. If the Judge so desired, he could pervert the ends of justice without any difficulty
or fear of detection. The decision of the Sadar Nizamat Adalat depended entirely on the report
that the Judge of the Mofussil Adalat chose to submit, and he could, in consideration of a sizable
bribe, manipulate the evidence in such a manner that, when transmitted to the Sadar Nizamat
Adalat it would appear to be sufficiently convincing as to procure the prisoner’s acquittal or his
conviction according as the Judge desired. For all practical purposes, therefore, the power of the
Mofussil Judge was uncontrolled and unrestrained.

The time taken for disposal of cases by the Mofussil Courts was very often inordinately large.
Sometimes, indeed, the delay was due either to the accumulation of cases on the file, or to the
difficulty of procuring the attendance of the witnesses. Frequently, however, it was the result of
the negli¬ gence and venality of the Judge himself. The long interval of time that elapsed
frequently between the commitment of a prisoner and the passing of the sentence against him
was an evil great in magnitude, resulting from the constitution of the criminal courts. The
Magistrate of Dacca adduced an instance of a prisoner in the Fozdary Jail at that place who had
been confined for ten years under a charge of murder and upon whom no sentence had been
passed. The Magistrate of Bardwan observed that the time consumed between the commitment
of the prisoner and the arrival of the final sentence from the Sadar Nizamat Adalat was very
uncertain. He quoted instances of its exceeding five years and added, ‘that it may with truth be
asserted that crimes would be but too frequently committed with impunity did not the magistrate
exert his influence to bring the offenders to condign punishment, more particularly as the injured
parties when they find they only add to the losses they have sustained by attending the slow
process of designed delays in the investigation of the Nizamat Courts relinquish all further
prosecution considering their hopes of redress as desperate.’1

The delay was attended with the most pernicious effects. Even if the prisoner was at length
acquitted he, nevertheless, had suffered all the consequences of a long and painful imprison¬
ment. If he was convicted and sentenced to suffer the punish¬ ment due to his crime, the delay
defeated the object of his punishment which was to deter others from committing the same
crime. For it has been justly observed that punishment should follow the crime as early as
possible so that the prospect of gratification or advantage which tempts a man to commit the
crimes should awaken the attendant idea of punishment.

The scandal was not confined to the Mofussil Courts only, for the proceedings of the Nizamat
Adalat were often as dilatory. The Magistrate at Dacca reported that there were many prisoners
whose trials in the local courts had long been completed, but, though, the proceedings had been
transmitted to Murshidabad, the Nazim had not passed final sentences. ‘I have been at this
station near two years/ wrote the Chitra Magistrate, fin which time I have apprehended a great
number of murderers and robbers, but the Nawab has not to this day thought proper to make an
example of any of them, though I have frequently addressed him on the subject/1

In many cases the punishment awarded to the prisoners appeared to bear no relation at all to the
nature of the offence. On the character of the Judge depended to a considerable extent the
severity or lenity of punishments. They could be atrociously severe or ridiculously light. The
merits of the case were very often but little considered in the determination of a sentence.
Murder was the one crime which was less frequent¬ ly punished than any other crime. This was
due to the weak¬ ness of the Muslim Law of Crimes. One Magistrate gave it as his opinion that
not one man in five hundred who deserved death penalty was executed.

By 1790, Lord Cornwrallis was convinced that the pre¬ vailing system for the administration of
criminal justice was entirely useless, futile and rotten to the core. In his opinion there was no
civilised country in the world where the system of criminal judicature was in so defective a state
as it was in Bengal, Bihar and Orissa. He knew that the regulation of justice in criminal cases
constituted one of the most important requisites of good government. He was, therefore, anxious
to introduce such ameliorative measures as were necessary for giving the greatest possible
efficacy and regularity to the crimi¬ nal jurisdiction throughout the provinces.

He realised that the prosperity and welfare of the coun¬ try, as well as the maintenance of law
and order, depended on a sound administration of criminal justice. In the absence of efficiency
and regularity in the criminal courts and their pro¬ ceedings, it was impossible to provide any
security for life and property.

The evils complained of proceeded from two obvious sources : firstly, the gross defects of the
Mohammedan Law of Crimes1; secondly, defects in the constitution of the courts established for
trial of offenders.

There were several portions of the Muslim Law of Crimes which, according to Cornwallis, were
most evidently contrary to natural justice and the good of society. Some modifications in this
field appeared to him indispensably necessary, and he carried them out in 17901.
The second question, namely the defects in the constitu¬ tion of the criminal courts, had been
engaging the attention of Cornwallis for some time. In 1789, writing to Dundas, Cornwallis
expressed himself thus: ‘The administration of criminal justice is oppressive, unjust and beyond
measure corrupt, and I see no remedy but by appointing three or four judges for Bengal and
Bihar from the Company’s senior servants, who should go on the circuit twice a year and
superintend the trials, and be particularly careful that the sentences should be executed on those
who are found guilty, and that the innocent should be released. Although this will be attended
with a considerable addition of expense, yet, whilst we call ourselves sovereigns of the country,
we cannot leave the lives, liberty and property of our subjects unprotected.’
With a view, therefore, that the trials of offenders might be conducted with expedition and
impartiality, and that the Supreme Government might be enabled to closely superintend the
general system, Cornwallis formulated a new scheme which was duly adopted by the Governor
General in Council in 1790. This scheme constituted a fundamental departure from the past. The
nominal and shadowy sovereignty of the Nawab, which had hitherto lingered on, was no longer
to be suffered and tolerated, and was done away with. To ensure prompt and impartial
administration of criminal justice, so as to provide security of life and property, Cornwallis
arranged for the assumption of the superintendence of the criminal judicature by the
Government, instead of the Nawab, who was divested of all his jurisdiction in criminal matters.
The responsibility for the administration of this important branch of justice was taken over by the
Company's Government to be executed directly through the agency of its own English servants,
instead of the Indians, who had hitherto sat in the Mofussil Nizamat Adalats. The Criminal
Judicature in the country was placed practically on the same footing as the Civil Judicature had
already been since 1772.