What Do I Say Now?
Happy Independence Day?
Introduction:
Law to be defined is as difficult as it is to define God or Indo-Pak borders. But to make it simple to define law one can start from finding answer to the famous question of "Why is law needed?" The answer to this question can not be framed in a single sentence as law resolves and answers many of the social[1] as well as personal[2] problems. It affects politics, economics & society in various ways. The very need of the law must have been first sensed when human being started living in communities. It is certain that law in the rough draft form must have been in place during civilization. The orderly growth of the towns and villages are significant of that. There is hardly any need of proofs to support to this basis.
When we now have arrived at a conclusion that the formation of communities gave rise to formations of laws, it is quite clear that laws would also be different for varied types of communities. India has been a conglomeration of various cultures, religions and communities. Apart from these, the vast geographical extents also gave rise to differences in life styles of people. Through the ages, India remains as a big sponge and has very wisely accommodated all these differences in one land. The present laws of India are hence the result of all cultures combined together.
Though the vast contribution of British Rulers in the present judicial system of India can never be denied, the small, and still vital, contributions of pre-British era can also never be neglected. Judicial system of India is in fact a gift of the British Raj but still it bears the mark of the judicial system that was prevalent in this country before the British came to this country. To put it generally, the development of Judicial System and the legal history of India can be conveniently divided under the four heads, namely;
Early Period or Hindu Period:
The first most important era for the judicial system of India can be considered to be the Hindu Period. This ranges from the pre-Vedic period and continues till the Muslims invaded and took the power and ruled this country. During this period, family was considered the unit of the social system. It was essentially patriarchal and normally the head of the family administered the family and its system. In the early era, law was definitely with the power, than it being the other way round. The king was considered to be the supreme law-giver and fountain head of justice. Every appeal was filed with him. Kings or advisers of the king were people who formulated, modified and looked after the laws and its incorporation in day to day life. Sometimes, not always, this led to the misuse of the power causing injustice culminating into general hatred and unwillingness to follow the law thus throwing whole society into the turmoil. One reference from Arthashastra[3] does supports this by saying, "When the law of punishment is kept in abeyance, it gives rise to such disorder as is implied in the proverb of fishes; for in the absence of a magistrate, the strong will swallow the weak; but under his protection, the weak resist the strong." As kings were supposed to be the guardians of law and order, and had highest position in the hierarchy in law structure this book was oriented in order to make the then kings and future kings well educated in the field of law. The book has got elaborative instructions on daily routine of education of a prince and a king, imbibing the importance of law in their minds. One hymn in the book says, "Whoever imposes severe punishment becomes repulsive to the people; while he who awards mild punishment becomes contemptible. But whoever imposes punishment as deserved becomes respectable." This shows that roots of the emphasis on jurisprudence in India can be traced to the 4th century B.C.
In ancient India there were different types of punishments as fine, gentle admonition, severe reprieve, corporal punishment, making the accused pay compensation to the aggrieved party in addition to the punishment given and death penalty, etc. Kautilya had gone a step further and said that "Award of punishment must be regulated by a consideration of motive and the nature of offence, time and place, strength, age, learning and monetary position." If a man committed some offence towards women such as adultery, rape, etc., he was punished severely. As the contemporary Indian society was divided into four different varnas[4] (i.e. classes) Brahmin, Kshatriya, Vaishya, & Shudra the book refers to these classes while directing the rules. Different rules were formulated for citizens of different classes. Certain smrities[5] had laid down that Brahmins should be given milder punishment. Normally, Shudras and women were not appointed as judges. It was unfortunate to have such dissimilarities on the basis of creed.
Medieval Period or Muslim Period:
The Muslim period or the medieval period in the Indian history marks new era in the legal history of the country. The Muslims started coming to India in the 8th century. They had settled in the Malabar Coast and Sindh. With the world wide conquest of the Muslim rulers to spread Islam they started entering India. Mohammed of Ghazni and Mohammed Ghori invaded India and captured a lot of territory and acquired lot of wealth. But they also indulged in brutality, vandalism and loot. These Muslim rulers were so indiscreet in making attempt to annihilate the Hindu way of life that they invariably affected the judicial system in India also. It was later on that the rulers like Akbar, Sher Shah Suri, Shah Jahan who brought about synthesis in Hindu and Muslim way of life. In Islam the Holy Quran is the fountain head of everything. Muslim social order and politics are guided by the tenets laid down in the holy Quran by Prophet Muhammad. But it could not affect the Hindu way of life. Jahangir and Shah Jahan tried to rule this country with statesmanship and competence. After Aurangzeb, son of Shah Jahan, began the downfall of Mughal Empire.
The Mughal Empire provided a system of government that shared many ideas of its own and also incorporated many Indian ideas as well. The administration was carried out in the name of Sultan or the Ruler who had his capital at Delhi. The empire was essentially military in nature, with every officer of the Mughal state a member of the army. The Emperor was an autocrat and had unlimited freedom in making laws. During the time of the Mughal Empire there was no formal written law, but there was a keen interest amongst the Mughal emperors to deliver speedy justice to its citizens. Although he had a council of ministers, he was not bound to consult them, and his word was law. The only restriction was that he had to follow the guidelines set forth in the scriptures and Islamic traditions. However, a powerful emperor could often violate these as well. The great Mughal kings can best be described as benevolent despots, who ruled fairly and justly. Most of them did involve their ministers in decision making. They also attempted to improve the lives of their subjects, although there was no socialistic work in their times.
The Mughal emperors were very keen on justice. But for most of the Mughal period, appealing to the emperor was a complex procedure. Two notable exceptions were Akbar and Jahangir, who allowed subjects to directly petition them. In addition to the emperor there were other officers in charge of justice. The chief justice was known as the Quazi-ul-Quazat. But the emperor remained the final court of appeal. Most villagers however resolved their cases in the village courts itself. There were in all six types of courts namely the court of Kaazi, the court of the Dadbaks or Mir Adils, court of the Faujdar, the Court of the Sadr, the Court of the Amils and the Court of the Kotwals. The state had curtain Vakils who had responsibility to defend the civil suits against state. The Government lawyers were known as Vakil-E-Sarkar.
The justice system placed even senior officers within the law, and perhaps the only person really above the law was the emperor himself. In fact it was believed that the king is the representative of God and therefore any attempt to overthrow or challenge the authority of state was considered to be a crime against God and dealt with accordingly. The offence like counterfeiting coins, gambling, causing injury and assault and minor thefts, etc. were punishable. The punishments were fairly severe, ranging from imprisonment, amputation, cutting of tongue, whipping and also death penalty. The approval of the emperor was however mandatory for capital punishment.
British Period:
The era of the British Empire began with Vasco-da-Gama’s[6] discovery of the passage to India in the year 1448. After this, Portugal and then England started trade with India. East India Company was established on 31st December, 1600 with the sanction of the British Crown. East India Company had the authority to make certain constitutional laws, frame orders for its employees or servants and also for the better advancement of trade and traffic. The company had established a factory at Surat which further expanded to Madras, Bombay and Calcutta. Charles II had received Bombay Island in Dowry from Portugal which he passed to East India Company in the year 1668-69. East India Company was given legislative powers for framing laws for this territory. In 1672, the laws framed by Governor of Surat factory were enforced on Bombay. Bombay was divided into four regions, each of which had an English man presided. a maritime court was established to decide cases of crimes committed on high seas. In the year 1694 Court of Admiralty was established in Bombay. In 1726 in each presidency town a Mayor's county was setup for civil justice. The criminal jurisdiction was given to the Governor and five senior members of the council. Thus the English laws were established on the Indian soil.
The English laws in India were mostly designed for advantage to British. It clearly exhibited an impartial and cheap administration of justice. The servants of company carried their own trade with illegal means. While deciding offences between British & Indian people, Company was left with an attitude that adversely affected the administration of justice.
After the battle of Plassey[7], the power of Nawab declined and the real power in the hands of the East India Company. This was another major turn in the history.
Landmark contributions to the legal system were set by General Warren Hastings[8] where great deals of administrative precedents were set up which profoundly shaped later attitudes towards the government. As Hastings had great respect for ancient scripture of Hinduism, Brahmins were allowed to mould laws, as no Englishman thoroughly understood Sanskrit. In 1781, Hastings founded Madrasa Aliya, meaning the higher madrasa, at Calcutta in an attempt to conciliate the goodwill of the Muslim population. The beginning cases were heard in the open courts and their records were maintained. Cases older than 12 years were not to be filed. A nominal fee was prescribed for trial of civil cases. As in those days dacoity was rampant, Hastings decided to give death penalty to these dacoits and that too in their own village. Separate courts for civil and criminal laws were set up. Later on the public opinion started holding the view that the company should not be left free and British Parliament should exercise control over it. Hence a supreme powerful court, the Supreme Court was set up at Calcutta[9]. Supreme Court had confined jurisdiction and it did not hear cases against Governor General and any of his Councilors. Supreme Court at Bombay and Madras were established later on after the success of Calcutta’s Supreme Court.
Lord Cornwallis[10] introduced several reforms including changes in judicial system in India. The first thing he did was to abolish the authority of Nawab over criminal judicature. In 1790, Collectors were given magisterial powers. Civil courts were also recognized. Native commissioners were appointed for Hindu and Mohammedan Law. Lord Cornwallis realized that it was not possible for poor people to pay court fees and hence he abolished it. All the Collectors and Executive Officers were made subject to court for their official acts. Now, the native Indians could also file cases against British and recover damages from them. Separate appeal courts were established.
During the period from 1797 to 1828, Lord Wellesley, Lord Monte, Lord Hastings and Lord Amherst made a number of reforms. After the first uprising in 1857, the British Parliament abolished the East India Company in 1858 and took direct charge of the government. The first Law Commission was appointed in 1861 which had fullest powers to enquire and report on judicial system in India. It also laid down need of establishment of High Courts.
With the establishment of High Courts, uniformity was brought. After the High Courts Act of 1911, High Courts were established at Patna, Lahore, Nagpur, Punjab, Assam, Orissa, Rajasthan, Travancore, Cochin, Mysore and Jammu and Kashmir. Federal Court of India came into being as a result of the Government of India Act 1935. The rules for appointment, salary, removal, etc. of judges were made.
The Privy Council was an institution of the English Legal History that heard appeals against the decision of Highest Courts of the colonies of the British Empire. For speedy and expeditious hearing of small and petty matters and to give justice to weaker section of the society, Small Causes’ Courts were established in the Presidency Towns. On October 6, 1860 the Indian Penal Code known as Act XIV of 1860 was passed and this was one of the greatest landmarks in the legal history of India. The crimes peculiar to Indian society such as dedicating girls to a deity to live a life of virginity, exploiting infants, dowry deaths, sati, burying labor alive, gang robbery, etc. were abated, if not extirpated.
As reporting of all cases is very important in judicial system, Law Reports were made. The history of law reporting in India dates back to the Company's rule as early as 1830. In pursuance of the provisions of the Indian Law Report Act, 1875, almost all the High Courts decided upon the publication of an official series of reports known as Indian Law Report (ILR).
Post Independence Period:
As India became free on 15th August 1947, the judicial system saw many reforms thereafter. The present judicial system after independance is one of the important chapters of legal history of India.
The vast Constitution of India, consisting of a Preamble, 22 parts with 448 articles, 12 schedules and 5 appendices has undergone over 109 ammendments till date. This Constitution, framed by Dr. B. R. Ambedkar, was enacted from 26th January, 1950.
The Supreme Court of India is the highest court in this country. The judiciary of India is free from control of either executive authorities or Parliament. Judiciary acts as an interpreter of Constitution and also as as intermdiary union. An act passed by parliament is subject to judicial review and can be declared unconstitutional by the Supreme Court.
The whole judicial system of the country is divided into two major categories, the civil judicature and the criminal judicature. Supreme Court is the highest seat of justice both in regard to Civil as well as Criminal Law and also performs various functions including exercising appellate jurisdiction over High Courts and other tribunals. Each state has a High Court which has both original and appellate jurisdiction. It also controls the judicial administration in the State and areas under its jurisdiction.
High Court of Maharashtra functions at Bombay with branches are at Nagpur, Aurangabad and Panaji. It was established in 1862 and covers jurisdiction of Maharashtra, Goa, Dadra & Nagar Haveli and Daman & Diu. The court at the bottom in each district is that of the judge of junior division. There are also judges of senior division who exercise original jurisdiction with higher pecuniary limits. From their decision, appeal lies in High Court. The District Judge is the Principal Judge of original jurisdiction in district. Besides these courts, Bombay also has Small Causes’ Court under the Presidency Small Causes’ Court Act. The City Civil Court is the court of original jurisdiction in civil matters. The High Court also exercise jurisdiction in matters of civil cases. Criminal courts are of three types presided over by First Class, Second Class and Third Class Magistrates. Sessions Court is an appellate court over the Magistrate’s Court. In Bombay, criminal courts are also known as Metropolitan Magistrate Courts. In Maharashtra, there is a complete separation of judiciary from the executive.
As the British ruled India fro a vast period, the legal system in India is highly influenced by them. All the rules and acts are drafted in English even after the Independence. This does create many problems for common man residing in rural areas and small towns. The laws of his own country are not easily understandable to him.
With all the varied cultural changes of Hindu, Muslim and British era, the judicial system of India stands out as unique in the whole world. Although there are a few drawbacks in the system, great work is being done to make it rich and helpful.
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Footnotes:
[1] Examples of laws that solve social problems would be like the Indian Penal Code-1860, Constitutional Law and many other uncodified laws.
[2] Examples of laws that solve personal problems would be like Shariyat Act-1937, Contract Act-1872 and many other uncodified laws.
[3] The Arthashastra is an ancient book on statecraft, economics and strategy, considered as first brick of Indian Law, authored by Kautilya (350 - 283 B.C.) who was a professor at Takshashila University and prime minister of the Maurya Empire.
[4] The quadruple division has four classes viz. Brahmins, (clergy and teachers of religious authority). Kshatriyas (warriors and administrators), Shudras (servants and unfree peasants) and Vaishyas (merchants and farmers or cattle-herders).
[5] Smriti is a codified component of Hindu customary law.
[6] Vasco-da-Gama was a Portuguese sailor and explorer who found the passage to India via. Cape of Good Hope (now known as Cape Town of South Africa).
[7] This was fought between East India Compnay and Nawab of Bengal and his French allies in June 1757.
[8] Warren Hastings was the first Governor General of Bengal from 1773 to 1785.
[9] Note that Supreme Court was established even before the High Court.
[10] Lord Charles Cornwallis was appointed as Governor General of India in 1786 and stayed as one till 1793.
