History comprises of the growth, evolution and development of the legal system in the country and sets forth the historical process whereby a legal system has come to be what it is over time. The legal system of a country at a given time is not the creation of one man or of one day but is the cumulative fruit of the endeavor, experience, thoughtful planning and patient labour of a large number of people through generations.
With the coming of the British to
India has a golden history of over 5000 years. Therefore a comprehensive study of Indian legal history comprises of the historical process of development of legal institutions in Hindus and Muslim periods.
The various sources of law relied upon by the kings at that time were shrutis, smritis, puranas, dharmasutras, dharmashastras, etc. The Arthashastra and Manusmriti were influential treatises in
Ancient India represented a distinct tradition of law, and had a historically independent school of legal theory and practice. The political structure in the Vedic Period consisted of kingdoms, each tribe forming a separate kingdom. The basic unit of political organization was the kula (family). A number of kulas formed a grama (village), Gramani being the head. A group of gramas formed a vis (clan) and a number of vis formed the jana (tribe). The leader was Rajan (the Vedic King). The king (raja) was the supreme head of the legislative, executive and judiciary branches. The members of the council of minister could give advice to the king, but final decisions were left to the king. The ministers and other officials were directly appointed by the king. The sabha and the samithi were responsible for the administration of justice at the village level.
According to Brihaspati Smiriti, there was a hierarchy of courts in Ancient India beginning with the family Courts and ending with the King. The lowest was the family arbitrator. The next higher court was that of the judge; the next of the Chief Justice who was called Praadivivaka, or adhyaksha; and at the top was the King’s court.
Early in this period, which finally culminated into the creation of the Gupta Empire, relations with ancient
The ideal of justice under Islam was one of the highest in the Middle ages.
The administration of justice was regarded by the Muslim kings as a religious duty.
Sources of Islamic Law are divided into Primary and Secondary Sources.
Quran is the first and the most important source of Islamic law. It is believed to be the direct words of God as revealed to Muhammad through angel Gabriel in
Sunna is the traditions or known practices of Prophet Muhammad, recorded in the Hadith literature. Quran justifies the use of Sunna as a source of law.
Ijma and Qiyas are the secondary sources of Islamic law. There are 72 Muslim sects in all with the Shia sect being the most popular in
Under the Moghal Empire the country had an efficient system of government with the result that the system of justice took shape. The unit of judicial administration was Qazi. Every provincial capital had its Qazi and at the head of the judicial administration was the Supreme Qazi of the empire (Qazi-ul-quzat). Moreover, every town and every village large enough to be classed as a Qasba had its own Qazi.
During this period, the personal laws of the non-Muslims were applied in civil matters, but the criminal law was the Islamic in nature. Whenever there was a conflict between Islamic Law and sacred laws of the Hindus, the former prevailed.
The charter of 1600 established the English East India Company in India. as per the charter of 1661 the English and the Indians residing under the Company came under its jurisdiction.
From the period ranging from 1661 till 1726, laws of equity and justice in conformity with the laws in England were followed. There was no codified law.
By the charter of 1668 the Company was conferred powers to make laws for the
From this period till the passing of the Charter of 1726, there were civil and criminal courts in these presidencies. In madras, there was the choultry court, the mayor’s court and the admiralty court as well. On the other hand, in
There was a system of appeals as well. In madras the appeals from the Mayor’s Court were filed to the Governor and Council. On the other hand,
Charter of 1726
In the subsequent years the Charter of 1726 was passed which granted special powers to the Company as was requested by it. Under this Charter the Mayor’s Court was established. This superseded all the other courts of
The Laws under this Charter were also applied in conformity with the laws in
Requisite independence was assured to the Mayor’s Courts but this along with their strict adherence to English laws became the cause of some difficulties like hostility between the Mayor and the Governor and Council, and non clarity regarding jurisdiction of the Mayor’s Court in respect of the natives. The judiciary did not possess expert staff for administering justice and the executive did not have respect for the judiciary
This system remained suspended while the French had occupied Madras which they later surrendered in 1749. Then the Charter of 1753 was passed in order to remove the difficulties of the preceding Charter.
This charter put the Mayor under the subjection of the Governor and Council in order to avoid disputes between the two. Suits and actions between the natives were expressly excluded from the jurisdiction of the Mayor’s Court unless both parties submitted them to its determination, and a Court of Requests was created to hear small civil cases. The defects of this Charter can be summarized by mentioning the executive ridden judiciary, failure of impartial judgment, judiciary suffering from lack of legal knowledge, limitation of the jurisdiction of the Courts to Presidency Towns, and no representation of Indian Judges as opposed to earlier provisions in some courts in Bombay.
The Company’s financial break-down was the immediate cause for the enforcement of the Regulating Act of 1773. Section 13 of the Act provided for the establishment of a Supreme Court at
The Act of Settlement 1781 aimed at removing the ambiguities created by the former Act, but was not successful in its entirety.
With the increase in activities of the Company an urgent need of a lawyer-judge was felt to deal with new cases. The Charter in 1798 did the needful by establishing the Recorder’s Court at
A parallel system of judiciary was running in the mofussil areas. The Company attained the Diwani of Bengal,
Under this system, diwan or amil, acted as the judge of the Mofussil Diwani Adalat. The Mofussil areas of Bengal,
This plan separated the executive from the judiciary. Provincial courts were left with the function of collecting land revenue only. For civil cases, a Diwani Adalat was established from which appeals went to the Sardar Diwani Adalat. Though this system assured the independence of the judiciary there were certain set-backs.
For the administration of criminal justice in a more efficient manner Warren Hastings drew a scheme in 1781 under which for apprehending criminals, Judges of the Mofussil Diwani Adalats were authorised to work as Magistrates and a department headed by the Remembrance of criminal Courts was opened to look after the working of the said courts.
The Governor –General Lord Cornwallis (1786-1793) introduced changes in the judicial system in 1787, 1790, and 1793. He had thoroughly reorganized the civil and criminal judicial system in
In 1787 he merged the revenue collection and power to try the revenue disputes in the same hands of the magistrate who formed the Mal Adalat . Appeals from the Mal Adalat had to go to the Governor General.
In the year 1790 the policy of 1787 was annulled. Cornwallis took a great step to improve administration of justice in the Mofussil by reforming the criminal law. The scheme had three limbs: at the lowest were the magistrates in the district, then the courts of circuits, and ultimately there was the Sadar Nizamat Adalat at
According to this plan the Supreme Court was divested of all its powers except for the power of appeal and the Collector was to be given civil as well as revenue cases. Executive was estranged from the judiciary in its entirety. He introduced professional lawyers or vakeels in the courts to appear on behalf of the parties to contest their case in order to increase efficiency.
Cornwallis did everything on structural and procedural side but he could not do much to reform the substantive law, particularly the criminal law which ‘was based on Muslim law and suffered from a number of defects’.
The year 1861 also constituted a conspicuous landmark in the process of development of legal and judicial institutions in
The High Court enjoyed the same power over all persons and estates. It had ordinary original, appellate and extraordinary original jurisdiction in civil cases whereas extraordinary and appellant jurisdiction in criminal cases. While exercising ordinary original jurisdiction the Courts were to apply the law of equity of the corresponding Supreme Court. In extraordinary original jurisdiction, the Courts applied the law of the corresponding local court, whereas in case of appellate jurisdiction the Courts applied the law of the court of original case filing. Acting as the court of appeal, reference or revision in Criminal cases, the courts applied the Indian Penal Code. The High Courts were empowered to make rules and orders for regulating all its proceedings in civil matters. By the subsequent charters High Courts were formed in Allahabad (1875), Patna (1912), Lahore (1865) etc.
The King, in the capacity of the being regarded as the fountain of justice in English legal system, could hear any petition filed by a party with respect to any matter with the help of the Privy Council. This was later, exercised by the King in the form of appeals and not otherwise. Appeals from
After the mutiny of 1857 the Company’s Government came to an end and the administration of the country was placed in the hands of the Crown through the Secretary of State for
A Federal Court set up in
An appeal could go to the Privy Council without leave, against the Judgements of the Federal Court given in its original jurisdiction and in any other matter with the leave of the Privy Council or of the Federal Court.
In the matter of the laws to be applied the very idea of a single omni-competent legislative body in
An important step towards fulfilling the goal of securing a uniform and simple system of law in India through the process of integration of the general system of codes was taken by the Charter Act of 1833. Section 53 provided for the appointment of a Law Commission in
The Second Law Commission, formed in 1853 submitted two reports, one dealing with reforms of the judiciary and the other with the reforms of law. It recommended the amalgamation of the Sadar Adalats and the Supreme Court in all the presidencies and the adoption of uniform civil and criminal procedure codes.
The proposals of the first two Commissions resulted in the codification of the Code for civil and criminal cases in the year 1857 and 1861 respectively and the enactment of the Penal Code in 1860. The Limitation Act and the High Courts Act were passed in 1855 and 1861 respectively.
The Third Law Commission proved to be the most successful of all the Commissions. It drafted several codes in its seven reports, the important ones being Indian Succession Act, Contract Act (1872), Evidence Act, the new Limitation Act and the Divorce Act 1869. Interestingly, the Government at this time was also considering the preparation of the Law Digest of cases. But it ended abruptly due to the dispute amongst its members.
Many branches of law had been ascertained by now but certain were still un-codified resulting in great deal of complexities. To this, Lord Salisbury recommended the formation of a small body to codify the remaining laws and it resulted in the codification of the Transfer of Property Act, the Easement Act, the Trusts Act and revision of the existing Codes.
With the expiry of the Fourth Commission, there came an end of a large scale codification undertaken by the British Government. They had successfully enacted the necessary laws to suit the pressing needs of the country.
The Indian Constituent Assembly passed the Abolition of Privy Council Jurisdiction Act in 1949 to abolish the jurisdiction of the Privy Council in respect of appeals from
The present day judicial system in
The Supreme Court is a court of record and it has the power to review its decisions.
It consists of the Chief Justice and twenty five other Judges appointed by the President of the country. The present Chief Justice is K.G. Balakrishanan.
Second in the hierarchy come the High Courts. As mentioned above the first High Court in the country was formed under the Act of 1861. But after independence the High Courts have also become the courts of record with appellate and original jurisdiction. They have been conferred the power to issue writs. The High Courts have superintendence over all the courts within its territorial jurisdiction. The decisions of the High Courts become precedents and are followed by the courts subordinate to it. Each State has its own High Court and a common High Court for two or more States can also be made.
With respect to Subordinate Courts, the Judges are appointed by the Governor and is controlled by the corresponding High Court.
Nyaya Panchayats are the judicial component of the Panchayat system and are the lowest ring of our judiciary. Their composition and power differs from State to State. They have jurisdiction over petty civil and criminal cases.
Our people did not have much say in the formation and reformation of our law during the British Period. But soon after independence Dr. Hari Singh Gaur moved a resolution in the Constituent Assembly recommending the establishment of a statutory law revision committee. But later the resolution was withdrawn on the assurance of the then Law Minister, Dr. B.R. Ambedkar that a more suitable machinery, would be devised for revising law. This concern was raised time and again and finally a non-official resolution in this regard was moved in the Lok Sabha on 19th November, 1954. This resolution was also withdrawn after a statement by the then Prime Minister Pt. Jawaharlal Nehru which led to the then Law Minister Shri. C.C. Biswas announcing in the Lok Sabha the decision of the Government of India, to appoint a law commission, the membership and terms of reference.
The commission, which was initially appointed upto 31st Decmeber 1956 and then extended from time to time upto 3oth September 1958, consisted of 7 members with Shri. M.C. Setalvad as its Chairman. The Commission submitted fourteen reports in all, thirteen on statutes revision, whereas the fourteenth one running into two volumes relates to reform in judicial administration. The report was the result of a long questionnaire and deliberations held in different parts of the country. One of the important recommendations of the Commission was of making Hindi as the common language throughout for all legal works and the regional languages for district and lower Courts.
The fifth report resulted in the British Statues Repeal Act, 1960 repealing 258 British Statutes.
The Second Law Commission (post independence) was appointed in 1958 under the Chairmanship of Shri. T.L. Venkatarama Aiyer for a period of three years. The commission made important reports on law of hire-purchase and marine insurance.
The third and fourth Law Commissions were under the Chairmanship of Shri. J.L. Kapur and submitted 16 reports and even drafted the Indian Post Office Act, 1898
Various Commissions have so far produced more than 200 reports and currently the 18th Law Commission (2006-2009) chaired by Justice A.S. Lakshmanan is in vogue.
The societies in the beginning were rudimentary and so were the laws of the societies. Laws have grown with the growth of society. This establishes a relationship between law and society, where law is an instrument of social change, and as Pound would put it law must be stable, but it must not stand still. To comprehend, understand, and appreciate the present legal system adequately, it is necessary to acquire a back-ground knowledge of the course of growth and development of the legal history.
A peculiar feature of the legal development in
Rashika Chaddha, ILS Law College, Pune.
Gunmeher juneja, Ram Manohar Lohia National Law College,Lucknow.