Law of India
Law
of India
•
India was a collection of kingdoms and
empires, which were constantly at war with each other.
•
The ancient empire of King Ashoka
and the later Mughal Empire united a substantial portion of the nation.
•
However, modern India took shape with the
conquest of the nation by the British which started in the late 17 the century.
Indian...
•
India became independent in 1947
•
As a consequence of over centuries of British
rule, a substantial portion of Indian law and Indian legal institutions are
based on British law.
•
During the ancient times the India was
inhabited predominantly by Hindus and the legal system took its colour from the
Hindu religious and social practices..
Historical
development
•
The Hindu society was characterized by
the caste system and joint family system
•
The four castes were Brahmins or
priests, the Kshatriyas or the warriors, the Vaisyas or the
merchants and Sudras or the workers.
•
Castes originated from division of
labour or an individual occupation and mobility between the castes was not
unknown. In the later years casts became rigid and inter caste mobility was not
permitted.
•
The Hindu joint family was originally a
family of Hindus related by blood living together sharing common fold shelter
and properties.
•
The family rather than the individual
was the social unit and therefore, the family not the individual owned
properties.
•
The Hindu family was patriarchal in nature.
The eldest male was the head of the family and enjoyed considerable powers over
the rest of the family.
•
The law at that time was based on Dharmashastras.
•
The law was administered by the king
under the advice of his ministers and learned Brahmins.
•
The king also appointed judges
•
Law at the village level was
administered by village Panchayat consisting of five or more members.
There was no system of professional lawyers representing the parties.
•
The Muslim started to invade in India
from around the 11th century AD and vast portions of it came under
the Muslim rule.
•
The Muslims established their law and
judicial institutions. The ultimate fountain of justice was Sultan or Mughal
emperor.
•
There were courts in the districts and
provinces. Final appeal was heard by the emperor himself.
•
However, the Panchayat continued
in the village. (court were presided by Muslim judges who administered the Sharia
law.
The British Invasion
•
The British came into India as traders
through East India Company in the 17th century. (later conquered the entire India.)
•
India was great Mughal empire when the
East India Company entered to India(1612 A.D.).
•
Mughal of India allowed East India
Company to establish its first settlement in Surat, north of Bombay.
•
In the 18th century the
Empire fell into pieces.
•
This made the British to open political
control of the country. After the fall of Mughal Empire, Hindu Law became
predominant in India again.
•
Initially, the British wanted to let the Hindu
legal system intact.
•
In original patent, the East India
Company was empowered to make regulations for the administration of its
overseas settlement.
•
Their senior officials could punish on
the spot for breaking of rules.
•
Later the company’s outposts increased
and numerous Indians entered the service of the company and centers of
administrative activities and trade developed.
•
The important towns were Madras, Bombay
and Calcutta.
•
In 1727, an ordinance of British Crown
gave these three towns’ special royal courts-the Mayors court, to resolve
disputes between parties in these towns according to justice and right.
•
Justice and right meant nothing more
than English common law.
•
However, common law was inappropriate in
disputes between Indians on family and succession matters.
•
At end of 18th century,
Mayor's courts were abolished and replaced by Supreme Court staffed by
professional English judges.
•
These courts were to apply primarily
common law.
•
However Islamic and Hindu law was
applied in Muslims or Hindus on disputes
relating to family or succession.
•
Judges consulted the experts of these two religions to obtain
information on their legal system.
•
In other cases the courts used to decide
cases according to equity, justice and good conscience.
•
Thus, common law developed in India during the 19th century
in modified form.
•
The provincial governments were
independent to each other and were different.
•
The presidency towns applied common law
differently than the provincial courts.
•
People felt necessity of Indian law to
be codified.
•
A law commission was set up in India
according to British statute of 1833,
•
The commission was mandated to
collect the laws of India, to put them
in order and codify them in a manageable way.
•
The first president of this commission
was Macaulay.
•
It drafted Indian Penal Code based
mainly on common law. It came into effect in 1857.
•
The commission also drafted Code of Civil
Procedure, 1859, Criminal Code, 1860 Criminal Procedure Ordinance, 1861, the
Indian Succession 1865 (for those who are not Hindus and Muslim) which
was based on common law.
•
By 1882, commercial, civil, and criminal
law of India was mostly codified.
•
The codes were based primarily on
already existing English law.
•
Only family law matters remained intact
(governable under religious law), but even here, judges no longer used local
law officers as assistants.
•
By relying on their own understanding
and interpretation of religious law, judges developed a distinct body of
Anglo-Hindu or Anglo-Muslim family law that became binding through the common
law principle of precedent.
•
The Indian Constitution drafted after
the independence established federal system with constitutional supremacy
•
The constitution established India as a
federal state.
•
Private law of India is mainly codified
law. There is exclusive list of basic human rights. However, in reality British
common law has been predominant in the present Indian legal system.
•
Upendra Baxi opines that Indian legal
system has been very much influenced from its colonial past even after many
years of its independence
•
The legislative draftsmen follow the model
and language of English law:
•
judicial interpretation continues to
rely heavily on Anglo-American decisional materials.
•
Court proceeding in civil and criminal
matters follows the common law.
•
The Indian law falls under common law
model.
•
The major characteristics of Indian law
are:
•
binding force of precedent,
•
The position and role of judge, freedom to deliver concurring or
dissenting opinions,
•
the importance of procedure in legal
remedies,
•
the role of lawyers in matter of
procedure
Structure of Indian Law
•
Although India falls under the family of
common law, the law of India is codified.
•
The main sources of law in India include
the constitution, statutory laws, customary laws, and case law.
•
There also exist subsidiary laws issued
by agencies. There are separate legal provisions for Hindus and Muslims for
family matters.
The
Court System
•
The court structure of India is very
complex.
•
In the village level, there are
panchayat and Lok Adalats that hear the cases primarily of tort-based
claim.
•
The panchas are popularly
elected.
•
The presiding officials of Lok Adalat
are generally retired judges or advocates selected by the parties.
Lower
courts
•
There are Munsifs
court or the court of subordinate magistrates.
•
Civil cases with smaller claims are
filed in Munsifs court and
Smaller criminal cases are filed in the court of subordinate
magistrates.
District
Courts
•
Each state is divided into district and
each district has a district court to hear serious civil case and Court of
Session judges for hearing serious criminal cases. ( 732 district courts)
•
Judges on these courts are appointed by
the governor of the state with consultation with the Chief Judge of High Court
.
•
District
judges hear civil cases and session judges hear criminal cases
Supreme
Court
•
Supreme Court has been influential not
only for justice but also for policy intervention through the means of Public
Interest Litigation.
•
Presently there are 34 justices appointed by
the President in consultation with collegiums including Chief Justices and four senior justices.
•
Chief Justice is appointed by the president on recommendation of outgoing
chief justice
High
Courts
•
There are 25 high courts for India’s states and union territories.
Some high courts serve more than one state or union territories. Each high
court has both original and appellate jurisdiction.
•
High court judges are selected by the
president from the persons who have held judicial offices or at least ten years
or practiced as advocate of a high court for ten years.
Comments
Post a Comment