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.

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