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Legal History

Law in India has evolved from religious prescription and age old customs to the current constitutional and legal system we have today, traversing through secular legal systems and the common law. The roots of the present day human social institutions lie deeply rooted in the past.  This is also true about the country’s law and legal system.  The legal system of a country at any given time cannot be said to be creation of one man for one day; it represents the cumulative effect of the endeavour, experience, thoughtful planning and patient labour of a large number of people throughout generations.

India has a recorded legal history starting from the Vedic ages and some sort of civil law system may have been in place during the Bronze Age and the Indus Valley civilization. Law as a matter of religious prescriptions and philosophical discourse has an illustrious history in India. Emanating from the Vedas, the Upanishads and other religious texts, it was a fertile field enriched by practitioners from different Hindu philosophical schools and later by Jains and Buddhists.

King's Court
King’s Court

Secular law in India varied widely from region to region and from ruler to ruler. Court systems for civil and criminal matters were essential features of many ruling dynasties of ancient India. India’s first major civilization flourished around 2500 BC in the Indus river valley. Excellent secular court systems existed under the Mauryas (321-185 BCE) and the Mughals (16th – 19th centuries) with the latter giving way to the current common law system.

The various stages of evolution of Indian law is classified as that during the Vedic period, the Islamic period, the British period and post independence.

Law in Vedic Period

In ancient Vedic era India, the King was regarded as the fountain head of justice and had to act as the lord of Dharma. He was entrusted with the supreme authority of the administration of justice. It was his foremost duty was to protect the rights of his masses. The ruler King’s Court was the highest court of the country. The court next to him was the court of the Chief Justice (Pradvivaka). The King’s Court was the highest court of appeal as well as an original court in cases of vital importance to the state. In the King’s Court the King was advised by learned people like Learned Brahmins, the ministers, the Chief Justice etc. As mentioned by Brihaspati, there were four kinds of tribunals, namely, stationary, movable courts held under the royal signet in the absence of the King, and commissions under the King’s presidency. So there was a definite hierarchy of courts.

Vedic Era Court
Vedic Era Court

Family courts were also established. Puga assemblies made up of groups of families in the same village decided civil disputes among family members. Minor criminal cases were dealt with by judicial assemblies in villages whereas criminal cases of a serious nature were presented before the central court usually held under the King or royal authority. The appeal system was practiced and the King was the highest Court of appeal. One significant feature of the ancient Indian legal system was the absence of lawyers. Another notable feature was that a bench of two or more judges was always preferred to administer justice rather than a single individual being the sole administrator of justice.

The Dharmasastras asked the kings to look upon the people as God (Praja Vishnu) and serve them with love and reverence. The doctrine of “king can do no wrong” was not accepted and the king himself was subjected to law.

The Classical Hindu Law includes the diverse legal practices connected with the Vedic traditionsin some ways and existing from the Vedic times until 1772 when the British adopted rules for administration of justice in Bengal. The Anglo-Hindu Law was evolved from the classical Hindu law during the British rule in India from 1772 to 1947. The British adopted the modern law or the English legal system and replaced the existing Indian laws except for family or personal laws in matters such as marriage, inheritance and succession of property. Family law or the personal law applicable to Hindus is the Modern Hindu Law.

Law in Mughal-ruled India

Mughal Court
Mughal Court

The Mughals played a very significant role in the judiciary system in India. They brought new changes in judiciary system and left a deep impact on Indian Judicial system.

It was emphasized by Muslim jurists that in the matters of justice the Rulers treated both sections of subjects ie Believers and non believers as equal in the law’s eye. It was advised that Justice and Beneficence must be exercised alike for all subjects .The king is the shadow of God and gift of divine mercy is common to both believers and nonbelievers .A king must curtail the hand of oppressor upon the weak because the Prophet says, ‘the cry of a victim of injustice even if he be a kafir is never rejected by God.  Still instances of duty being imposed by the King to see that believers lived as true Muslims and non believers remained in the position allotted to them which denied them equal status with Muslim subjects. However security of life and property and the continuance of their religion and religious practices under certain defined conditions were allowed and protected. Therefore a Muslim king besides performing the ordinary duties connected with his office,had also to uphold the dignity of his religion through defined channels and to rule according to Islamic law.

The Sultan or the King was the fountain head of judicial system. He was all in all in the state. The second agency of judiciary was the Qazi. Qazi had a bigger role in the judicial system in the state and he held the court and gave justice. Anyone who has by common agreement ranked among the learned, recognized to be an authority on religious law was called a Mufti.  Their assistance was sought on issues on which the law was not clear to the Qazis of the court. Muftis were called upon to give a fatwa, that is to say, a decree in accordance with the law, on all questions of social and religious life of the Muslims and even of the non-Muslims. Mir Adl were also appointed who possessed no judicial powers such as those of a Qazi, but his duties were analogous to those of a Mufti who gave his opinion on a point of law. Mir Adl submitted report on the fact and the case was made over to him by the Qazi, after the judgement was delivered for superintendence of proceedings in execution. He was in fact a superior clerk of the Court. The officials of the judicial system were the same but with time, territory and nature of the Emperor things kept on changing. “State” Law was a command of the sovereign and was binding on all. Consequently very few digests or codes of laws existed in Mughal India. The place of laws taken by these regulations was proclaimed only by the Emperor’s orders. The Twelve Ordinances of Jahangir and the Fata-i-Alamgiri were the work of the monarchs themselves.

Emperor like Akbar has changed many things for betterment in the system of the judiciary in his reign. Abu- Fazal Allami, a famous noted historian in the court of Akbar, wrote in A-in-i -Akbari about the idea of Akbar of justice and what a king should do for justice.  “A king should make a distinction in his watch over the goods, the lives, the honour and the religion of his subjects. If those who are led away by greed and passion will not be reclaimed by admonition, they must be chastised.’

The Mughal Emperors fully recognised the principle of representation through lawyers. During the reigns of Shahjahan and Aurangzeb lawyers were appointed I engaged permanently to defend civil suits against the state and to assist poor litigants with free legal advice. The Vakils were appointed as whole time employees by the state in all the Sarkars and were called Vakil-i-Sarkar or Vakil-i-Sharai. The organization and location of the law courts (adalat)under the Mugals was moulded on the administrative pattern of the Empire consisting of villages , Pargnas, Sarkars, Subahs and the center or the Capital.Each of these divisions had to be provided with courts where justice could be administered. The Sarkar in the Mughal administration was the subdivision of a Subah and had within it a large number of Parganas. The Kotwals in the Sarkar and in the various towns also decided petty cases involving infringement of laws which today may come under municipal laws. The Kotwal was a magistrate, prefect of police and municipal officer rolled into one.

Law in British-ruled India

British East India Company brought along with it the common law system – a system of law based on recorded judicial precedents. The company which initially had the permission to only trade was granted charter by King George I in 1726 to establish “Mayor’s Courts” in Madras, Bombay and Calcutta (now Chennai, Mumbai and Kolkata respectively). Company expanded  its Judicial functions substantially after its victory in Battle of Plassey and by 1772 company’s courts expanded out from the three major cities. In the process, the company slowly replaced the existing Mughal legal system in those parts.

British Courtroom
British Courtroom

Following the First War of Independence in 1857, the control of company territories in India passed to the British Crown. Being part of the empire saw the next big shift in the Indian legal system. Supreme courts were established replacing the existing mayoral courts. These courts were converted to the first High Courts through letters of patents authorized by the Indian High Courts Act passed by the British parliament in 1862. Superintendence of lower courts and enrolment of law practitioners were deputed to the respective high courts.

During the Raj, the Privy Council acted as the highest court of appeal. Cases before the council were adjudicated by the law lords of the House of Lords. The state sued and was sued in the name of the British sovereign in her capacity as Empress of India.

During the shift from Mughal legal system, the advocates under that regimen, “vakils”, too followed suit, though they mostly continued their earlier role as client representatives. The doors of the newly created Supreme Courts were barred to Indian practitioners as right of audience was limited to members of English, Irish and Scottish professional bodies. Subsequent rules and statutes culminating in the Legal Practitioners Act of 1846 which opened up the profession regardless of nationality or religion.

Coding of law also began in earnest with the forming of the first Law Commission. Under the stewardship of its chairman, Thomas Babington Macaulay, the Indian Penal Code was drafted, enacted and brought into force by 1862. The Code of Criminal Procedure was also drafted by the same commission. Host of other statutes and codes like Evidence Act (1872) and Contracts Act (1872).

Law after Independence

At the dawn of independence, the parliament of independent India was the forge where a document that will guide the young nation was being crafted. It will fall on the keen legal mind of B. R. Ambedkar to formulate a constitution for the newly independent nation. The Indian Bar had a role in the Independence movement that can hardly be overstated – that the tallest leaders of the movement across the political spectrum were lawyers is ample proof. The new nation saw its first leader in Jawaharlal Nehru, and a paternal figure in M. K. Gandhi, both exemplary lawyers. Perhaps it is the consequent understanding of law and its relation to society that prompted the founding fathers to devote the energy required to form a Constitution of unprecedented magnitude in both scope and length.

Indian Court
Indian Court

The Constitution of India is the guiding light in all matters executive, legislative and judicial in the country. It is extensive and aims to be sensitive. The Constitution turned the direction of system originally introduced for perpetuation of colonial and imperial interests in India, firmly in the direction of social welfare. The Constitution explicitly and through judicial interpretation seeks to empower the weakest members of the society.

India has an organic law as consequence of common law system. Through judicial pronouncements and legislative action, this has been fine-tuned for Indian conditions. The Indian legal system’s move towards a social justice paradigm, though undertook independently, can be seen to mirror the changes in other territories with common law system.

From an artifice of the colonial masters, the Indian legal system has evolved as an essential ingredient of the world’s largest democracy and a crucial front in the battle to secure constitutional rights for every citizen.

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