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Main features of the English Legal system:
1. Rule of law
Uniformity and Codification(reduction of laws customarily
observed by a particular set of people to a more or lesspermanent, organized and written form)
2. Independence of the Judiciary
Separation of the executive and judicial functions
These doctrines had evolved in England and in thehad become fundamental principles of English
Constitutional law in 18th century
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Introduction of the British legal
System 1764Battle of Buxar
1765 Grant of Diwani
1765-1772 Establishment of Dual Govt by Clive. Both Civil and
Criminal Justice was left in the hands of natives 1772- Warren Hastings (1772-1785) ended Dual Govt. Besides
the collection of Revenue accepted full responsibility for the
administration of Civil justice. Left criminal justice in the
hands of the natives although even this branch was brought
under the nominal control of the co. and new hierarchies of
courts, both civil and criminal, under British supervision
were created.
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District level
A civil (Diwani Adalat)and a criminal court
(Faujdari Adalat) was est.Collector was to preside in the Diwani Adalat
which could deal with all civil disputes of
property, inheritance, marriage caste, debt,
contracts etc.
Collectors combined in themselves the functions
of revenue collection and civil justice
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In Calcutta
Two corresponding courts of superior judicature
were est. : the Sadar Diwani Adalat and theSadr Nizamat Adalat.
Sadar Diwani Adalat
the Governor General and two members of hiscouncil were to preside
-- Its function was to settle appeals from the
decisions of the District Courts.
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1773 Regulating Act established a Supreme Court in Calcutta
representing the British crown with its jurisdiction over all
Europeans living in Bengal and all native citizens of Calcuttaonly. The Sadar Adalat had no jurisdiction over the Europeans
nor the Supreme Court over the natives outside of Calcutta.
Initially gave rise to confusion between executive and judicial
authorities and the courts of the company due to vagueness
of the provisions of the Regulating Act . The Supreme Court
struck terror among the people by ignoring the authority of
the Cos Courts and adopting legal principals and procedures
which were foreign to india. This was corrected in 1781 when
the jurisdiction of the Supreme Court was restricted , legalrecognition was given to the Cos courts and the application of
the English law was banned
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Judicial reforms of Lord Cornwallis
1786-1793 Called the father of Indian Judicial system
Brought about a division betwee the executive and
the judicial branches of the govt.
Collector was divested of his judicial duties
Introduced a three tier system of courts- Established
four provincial courts of appeal above the zillah
courts. Business in these was conducted by threecovenanted servantas of the Co. Their decision was
final in suits upto 1000 Rs
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Accepted responsibility for the administration of criminal
justice :
Had general distrust of Indians and was averse to their
holding key positions in administration. Believed that no legalreform could work so long as its execution lay in their hands.
Muslim judges to be replaced by Europeans.
Sadar Nizamat adalat brought under control of Gov.
General and members of his council
The four provincial Diwani adalats were to act as Courts of
circuit in the admn. Of criminal justice under
suprintendence of 3 covenanted servants of the Co.
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All legal amendments related to judicial procedure.
British contribution lay in devising a better method
for administering the laws
No attempt was made to introduce British law-
Justice contd. to be administered according to the
laws of the land. Early officials repeatedly proclaimed
that civil and personal laws, such as property,
inheritance, succession, marriage, adoption etc,
would be administered according to traditionallaws
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For Hindu law :A team of eleven Pundits appointed to compile
a code on Hindu law in 1772 The Pundits compiled a text
under the title Vivadarnavasetu A Bridge in the Ocean of
Disputes. The original Sanskrit version was later on rendered
in Persian and then into English by Nathaniel Halhead under
the title A Code of Gentoo laws Referred to as Standard
handbook on Hindu law Project was encouraged and funded
by Warren Hastings
1794-William Jones translated Manusmrti (500 and 400 B. C)under the title The Institutes of Hindu Law.
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Another compilation was undertaken under the initiative of
William Jones who appointed Jagannath Tarkapanchanan, the
legendary scholar on all branches of the Dharmasastras tocompile Vivadabhangarnavathat literally means a break
wave on the ocean of disputes. Due to the untimely death of
Jones, H. T Colebrooke translated the text under the title A
Digest of Hindu Law, first published in 1801.
For Muslim Law -Main text was Al Hidaya- guide to Muslim
law. The Author, Shaykh al-Islam Burhan al-Din al-Marghindni
(d. 1197 CE) leading jurist of the Muslim world in his times.Tr.
By Charles Hamilton Was the primary text used by Muslim
jurists to issue authentic and reliable rulings on Islamic law
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Major difficulties in administering Indian law
lack of knowledge of local laws, customs and languages.
Books containing the laws were not purely books of law
but contained religious principles and precepts Amount of literature was too vast and presented a
confusing picture
Appointment of Native law officers to assist the judges by
expounding the principles of indigenous law
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Defects of Muslim Criminal law
Muslim criminal law in force before introd. Of English
law
It often contained ideas repugnant to the morality of
the English. It had been modified piecemeal earlier
was superseded by the Indian penal code.
Defects: Generally regarded crime as a wrong done
to the injured party not an offence against the state
and punishment regarded as the private right of the
aggrieved party.
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Classification of crimes under Muhammadan law:
1) Crimes against God- apostasy, adultery, fornication, falsely
accusing married persons of adultery, drinking intoxicating
liquor, theft, highway robbery , robbery with murder
HADD -specific penalties for specific offences regarded as
anti-social or anti religious :For Zina (adultery) punishment
was stoning and scourging ; for falsely accusing a marriedwoman of adultery and for wine drinking , the penaty was
scourging . For theft, mutilation of right hand
For highway robbery both hands and feet were to be cut off
and robbery with murder was punishable by death.
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2) crimes against private individuals
Punishments.
Qisas-or retaliation means life for life and limb for
limb.
Gave the right to the injured person or next of kin
the right to inflict a similar injury to the wrong-doer DIYA (blood money) Kisa could be exchanged with
Diya (blood money)In case of intentional wounding
fine could be accepted in lieu of retaliation
TAZIR (discretionary punishment )judges could
exercise their discretion with regard to the
punishment in the absence of any rule
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Law of Evidence was unsatisfactory:
No Mohammedan could be convicted on the
evidence of an infidel . A Mohammedans word regarded equivalent
to those of two Hindus
Evidence of two women equal to that of oneman. In the case of hadd or Kisa a womans
evidence was inadmissible.
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Reforms and changes in Muslim
criminal law upto 1834 The option of the next of kin to pardon a murderer
was taken away. If the kin had pardoned a murderer
or claimed Diya, he would be tried in sadar Nizamat
Adalat Criminal courts were directed to see that thelaw took its own course upon all persons convicted
without any reference to the will of the heir or
kindred of the deceased
replaced mutilation of limb by temporary hard
labour or fine or imprisonment according to the
circumstances. If a prisoner was condemned to lose
two limbs imprisonment and hard labour for 14
years. One limb= hard labour for 7 years
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Revised Muhammadan law of evidence and
provided for the prosecution and conviction of
Muslims on the testimony of a non muslims
According to the regul;ation- the religious
persuasion of a witness shall not be
considered a bar to the conviction or
condemnation of a prisoner.
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Crimes in Hindu community
Regulations were passed against female
infanticide in 1795 and1804 The Female
Infanticide Prevention Act 1870
Abolition of Sati by a Regulation of 1829 .
Orthodox Hindus sent an appeal to the Privy
Council in England. Ram Mohan Roy carried a
Counter petition which he presented to the
House of Commons and was present when the
appeal was dismissed.
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Critique Relied largely on written texts and ignored dynamic
interaction between textual law and non textualcustom which had gradually evolved in pre-British
India
Systematic projection of the Sastras -Attempt to
understand the Hindu law on the basis of scriptural
texts- srutis, smritis, Dharamsastras, digests and
commentaries with the help of Pandits-Reliance on
scriptural texts produced an understanding of Indian
society which was overwhelmingly religious- religion
regarded as the prime mover of Indian society
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Tradition ofTikas and Nibandhas which offered
interpretations of the same text varied among authors in
different regions and periods of time. Medhatithis
Manubhasya or Kulluka Bhattas Manavarthamuktavali
British legal terminologies such as digest and law
transformed prescriptive guidelines enshrined in the Sastras
into legal rules to be directly administered through court.
Brahminisation of the lower classes- established Brahmins at
the centre f the judicial discourse. Hindu law expanded its
authority across large areas of society which had not known it
before and for long periods had their own more localize and
non scriptural customs..
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Codification of Law Was one of the most important achievements of
the East India Company judicial administration
1830 Whigs came to power Triumph ofliberalism- The great Reform Act of 1932 waspassed in England
Charter Act of 1833-constitutedIst Law Commissionfor consolidating codifying and improving Indianlaw.
Macaulay, first Chairman of the commission
Our principle is simply this uniformity when youcan have it ; diversity when you must have it ; butin all cases certainty.( Macaulay)
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Macaulay Code- draft of a penal code prepared by himbecame, after a revision of many years, was enactedin 1860 as the Indian Penal Code.Sir James Stephen
"it reproduces in a concise and even more beautifulform the spirit of the law of England, The Indian penalcode is to the English criminal law what amanufactured article ready for use is to the materialsout of which it is made. It is to the French code and to
the German code of 1871, what a finished picture is toa sketch. It is simpler and better expressed thanLivingston's code for Louisiana; and its practical successhas been complete.
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Hindu and Muslim law was rarely included in
these Indian law codes, so the entire
codification process represented the
transplantation of English law to India,
complete with lawyers and judges.
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SECOND LAW COMMISSION under Charter act of 1853. Brief:
examining and considering the recommendations of the first
Indian Law commission for the reform of the judicial
establishment, judicial procedure and laws of India. Achievements-
Penal Code proposed by Macaulay was revised and finally
passed in 1860
Codes of civil and criminal procedure were passed in 1859and 1861 respectively
Draft of Law of limitation was passed into law in 1859
Adopted the recommendations of the first commission
regarding substantive civil law on the basis of the law of
England but with constant regard to the conditions and
institutions of India, the religions and usages of its people
These codes did away with regional and local variations in
judicial practice, brought about legal unity and established
rule of law instead of rule of custom
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Indian high Courts Act-1861 High Courts were
established by letters patent of the Queen in
calcutta , Madras and Bombay. On their
establishment the old Supreme Courts and
sadar adalats were abolished and their
jurisdiction and powers transferred to the new
high courts These courts were independent of the
executive Govt . A free judiciary evolved in
India within the framework of despotism
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1861 Third Law Commission - Events of 1857 Brief :prepare a
body of substantive Civil law using law of England as a basis
having due regard for institutions
Achievements Preparation of draft of law of succession which became
Indian Succession act of 1865
draft of Contract Bill which did away with hindu and
Muslim Law of Contracts enacted as Indian Contract act
1872
Draft of Negotiable Instruments Bill enacted in 1881
Draft of Transfer of property Bill
Draft code of law of insurance
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Fourth Law Commission 1879
Between 1882-1912 no new important codeswere passed. But all important codes were
amended and consolidated.
Contribution -Gave India a system of codesdealing with important parts of substantive
and procedural civil and criminal law.
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Racial discrimination
Civil Justice 1833 Charter act opened up doors of British india for
British subjects
Section 85 of the act provided protection to natives
from insults and outrages of the British subjectsagainst their persons, properties religions etc.
Section 46 made an important reservation- that the
Govt. of India could not make any law without
previous sanction of Directors empowering courts
other than Supreme Court to sentence Briotish
subjects to death.
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Macaulay: for elimination of discrimination- To give
every English defendant in every civil case a right to
bring the native plaintiff before the Supreme Court is
to give every dishonest Englishman immunity against
all civil prosecution.
Special privileges of the British abolished in Civil law
in 1843 but contd. for longer in criminal law.
Code of criminal procedure 1861 secured the legal
superiority of European subjects by reserving for
them special privileges such as right to trial with amajority of European jurors, amenability only to
British judges and limited punishment
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As Thomas, a member of the legislative Council
remarked
Whether a planter gets justice or not at the hand of
the native magistrate is a secondary consideration.
The mere fact of his having to appear before and be
tried by a native magistratewill so lower him in the
eyes of the coolies that he will not be able to
command their respect anymore.
1872 British Subjects living in the interior were
exempt from the jurisdiction of the courts presided
by Indian judges in criminal matters.
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1883- Ilbert Bill- C.P. Ilbert, the Law Member in
Viceroy Ripons Council introduced a bill which
proposed to give Indian District magistrates and
session judges the power to try European offendersin the mofussil as they already did in the presidency
towns. Created a White Mutiny
In 1884, bill was withdrawn . A compromise formula
was adopted whereby a mixed jury was mandatory incases involving European offenders.
1949- Criminal Law (Removal of Racial discrimination
Act)
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Warren Hastings was the first to initiate codification
of Hindu and Muslim law :
Among the various plans , the necessity of establishing anew form of judicature and giving laws to a people who
were supposed to be governed by no other principle of
justice than the arbitrary wills ,has been frequently
suggested it is too positively asserted that written laws
are unknown to the Hindus or original inhabitants of
Hindustan. It would be a grievance to deprive the people
of the protection of their own laws , but it would be
wanton tyranny to require their obedience to others of
which they are wholly ignorant and of such they have nomeans of acquiring knowledge. It was judged advisable for
the sake of giving confidence to the people and to enable
courts to decide with certainty and dispatch to form a
compilation of Hindu law with the best authority that
could be obtained
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to rule effectively, one must love India; to love India, one
must communicate with her people; to communicate with
her people, one must acquire her languages. (Warren
Hastings)
A patron of the arts and of learning he laid the foundations
for the creation of the Asiatic Society in 1784 by Sir William
Jones, a British lawyer and Orientalist, to encourage Oriental
studies.
The declared aim of the society was to further the bounds ofinvestigations will be the geographical limits of Asia, and
within these limits its enquiries will be extended to whatever
is performed by man or produced by nature.
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Sir William Jones
At twenty he became adept in French, Italian, Spanish,
Portuguese, Greek, Latin and English. His knowledge of Arabic
and Persian made King Christian VII of Denmark assign him
the translation of "Tariq-i-Nadiri" into French.
Great admirer of Sanskrit language which according to him
that the Sanskrit language had wonderful structure, more
perfect than Greek, more copious than the Latin.
He translated Kalidasa's "Abhijnana Shakuntala" and "Ritu
Samhara," and Jayadeva's "Gita Govinda" into English.
Laid foundation of Science of Linguistics. Thereafter, many
western universities began founding chairs in Sanskrit.
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The terms- Institute and law were English terms -
Derrrett defined the Western notion of law as
follows:
Law is the body of rules (namely positive and
negative injunctions and prohibitions), which can be
enforced by judicial actions. A rule which will not beobserved, directly or indirectly, in a court or before a
tribunal is not law. What ought (in some peoples
perception) to be law is not law. Ethical injunctions
are not law. That which is left to choice is not law. Both the concepts of code and law were foreign
to the entire tradition.
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The word Dharma literally means to hold, to support, to
maintain or to sustain. The rules expounded here provided
prescriptive, normative and moralistic guidelines for thetwice-born (Brahmin, ksatriya and Vaisya) and marginally for
the Sudras. The prescriptions were designed to regulate the
entire life-cycle of a Hindu individual- both male and female.
They were encouraged to perform the righteous duties
appropriate to his or her sex (Stripuruso dharma), status
(Varna) and stages of life (asrama). In the end, the entire
literature envisaged not only worldly happiness and a
harmonious social order but also hopes of blissful existence in
heaven. Sastras defined wrong actions as sin rather than crime and
they would best impose strictures and penances as symbol of
repentance. The penances were by no means equal to
punishment or conviction
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Focus on hindu law in the early period. Since the
legal theory of Islam did not recognize custom as a
formal and independent source of law
Main text was Al Hidaya- guide to Muslim lawThe
Author, Shaykh al-Islam Burhan al-Din al-Marghindni
(d. 1197 CE) leading jurist of the Muslim world in his
times.Tr. By Charles Hamilton The Hidayah has
dominated the field of Islamic jurisprudence since
the day it was written over 800 years ago. It has been
the primary text used by Muslim jurists to issue
authentic and reliable rulings on Islamic law.
Islamization of Muslim law
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Post 1857 Parsee Marriage and Divorce Act and the Parsee
Intestate Succession Act (15 and 21 of 1865).
The Native Converts Marriage Dissolution act, 1866
that allows a Hindu to appeal for a divorce if aspouse converts to Christianity
The Special marriage act 1872 applied only to
followers of Brahma Samaj . Abolished polygamy and
marriage of girls before 14; sanctioned intercastemarriages and remarriage of widows
The Indian Succession Act 1865
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Age of Consent Act 1891 forbade the
consummation of marriage before the wife
had reached the age of 12.
The Hindu Wills act 1870 extended to hindus
rules and regulations which govern
testamentary disposition in England. Conversions,
to Christianity and to Hindu reformist sects in the nineteenthcentury created social conflicts, in which the British
government intervened with legislations prohibiting civil
discrimination on a religious basis. Hindu, Muslim and Parsi
orthodoxies were unable to prevent such legislation,
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The press and registration of Books act 1867
The Indian trustees act 1865The Religious
Endowments act
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1773- British Subjects residing in Bengal
could be tried only in the Supreme Court.
1793 Justices of Peace were appointed
from the covenanted servants of the
Company who could enquire into charges
and apprehend but could not try.
1813- Magistrates could act as Justices of
Peace and try the English and punish them
by fine not exceeding Rs.500 or imprison
them in case of non payment Such
convictions could be removed by a writ in
the Supreme Court.Act of 1836- abolished discrimination No
person should be exempt from the
Companys courts above that of Munsif in
Bengal. Black Act
1839- No person would be exempt from
the jurisdiction of the Munsif Courts .