Indian Legal System: The Vedic or Pre Sutra Period (Aryan Civilization)
Indian Legal System: The Vedic or Pre Sutra Period (Aryan Civilization)
King head of state not the head of Society. King a symbolic head due to lack of direct control over people Respect for tradition, authority & blind faith rather than discriminating judgment were primary formative factors State & Society had independent existence, a truism A policy of no interference, as the ideal policy of the state. Functions restricted to irreducible minimum, namely protection of life & property and realization of revenue for proper execution of that duty Early Vedas know only Monarchy. Bodies that regulated community life:(in the form of popular assemblies & institutions) Parishad: advisory body on religious matters, also executed some judicial functions Samiti: body for general deliberations of all kinds of policy matters, also discharged legislative & Judicial functions (election reelection of a King i.e. RAJAN) King therefore duty bound to participate in the deliberations of the Samiti. A sovereign body Sabha: A body of select persons, the national judicature, resolutions of the Sabha binding on all persons
The Dharma Sutra Period The Golden period of Hindu Legal History Law propounded by Smriti writers more systematic & comprehensive in nature. Laid down certain set principles to be followed by the people and the king alike in matters like marriage, inheritance, succession, partition The Sutra Period: Significant Sutras:Gautama(law in religious &legal matters; permitted marriage b/w different castes Baudhyana(some portion of it destroyed, treats subjects like inheritance, sonship, adoption, marriage) Apastamba(Best preserved sutra; aspects of marriage inheritance also criminal law) Harita(considered of great authority by Apastamba; doctrine of resjudicata in hindu law:(preventing new judgments from contradicting old ones) Vashishta(deals with sources &jurisdiction of Law) Vishnu(Criminal & Civil) The Smiriti Period: Significant Smritis that led to development of Hindu Law:-
The Institute of Manu(200BC &100AD;landmark in the history of hindu law; ordinance based on ancient usages ) Yajnavalkya Smriti (Code based on Manusmriti; more liberal when compared to Manu) Narada(emphatic & categorical that custom is powerful & overrides sacred law text; striking feature that laws made by the king could override rule of law laid down in the smrities) Brihaspati(compiled a century after Narada smriti; dealt with adjective & procedural law Katyana(4th &5th century AD;deals with substantive & adjective law [pleading & evidence]) Judicial System In the Sutra & Smriti periods the hierarchy of the courts was of the following order: Royal Court (SABHA staffed by experienced councilors who advised the king on the point of law in accordance with the law laid down in sacred text books & local customs) According to the Yajnavalkya, other tribunals deriving authority from the king included the KULA (assembly of persons of the same family, community, tribe, castes, race who felt equally bound by its decisions. SHRENI (assembly of persons following the same avocation of trade PUGA (assembly of the cohabitants of the village or town of different castes and occupations which included: Companies of traders & others Association of persons differing in cases whose mode of subsistence was not fixed Riders on elephants & horses The Post Smriti Period Arthashastra of Kautilya(minister of Chandragupta maurya) compiled around 300 BC: secular in character and rules enunciated based on actual administration Civil Law Book 3 & 4 deal with administration of Law According to him marriage was at the root of all disputes including property disputes: eight types of marriages: brahma, prajapatya, arsha, gandharva, asura, rakshsa, paisacha: each earlier form superior to the latter. Favoured monogamy but sanctioned any number of wives for whom the man could pay SULKA /STREEDHAN.
Woman on the other hand could not remarry until the husband was living but was allowed to remarry his brother or sagotra if the husband was absent or any man of her liking with permission of the judges Divorce Could be obtained in the first four kind of marriages (valid on approval by father).Neither could obtain divorce against the will of the other Woman could abandon spouse if He is of bad character Long gone abroad Had become a traitor Likely to endanger life of his wife Had fallen from caste Had lost virility Partition To take place then all heirs attain majority Self acquired property or gains of learning not liable to be partitioned Partition in accordance with local custom Contracts All kinds of contracts including sale, purchase, hypothecation & marriage valid if made with free will not against the public policy or morals Fraud and misrepresentation vitiated the contract Miscellaneous Included debt, deposits, pledges, master & servants, laborers &cooperative undertakings Criminal Law Book 3 & 4 deal with robbery, defamation, assault gambling also offences against animals, trees, immovable property also murder, abortion, rape, adultery sedition and offences against the king. Sexual Offences Woman equally punishable if she abetted or showed willingness. No offence if committed with consent with a woman of upper or lower caste Equally strict for public servants who possessed power and misused it. Nibandhas & Tikas (commentaries) Commentaries played a significant part in development of Hindu Law(700-1800 AD) Nibandhkars quoted exclusively from original texts on contentions. Rules: In case of conflict b/w srutis & smrities sruties will prevail If there is conflict within srutis /smrities understood that the text is contextual If conflict not resolved reason & usage to prevail Vivaneswaras commentary Yajnavalkya Smriti known as Mitakshara(11th 12th Cen was smriti material); its authority extended throughout India except Bengal
where , Dayabhaga prevailed (one major difference sons cannot claim partition until father is still living) Vyavhars along with Dharma governed relations Dharma means religion; virtue as opposed to sin or vice; law; justice & duty. Dharma represented privileges, duties & obligations. All including King bound by dharma Vyavhar on the other hand has been in the smritis and commentaries in the sense of civil law , positive law, legal procedure , litigation or dispute. As moral & social values denigrated , king had to attend to vyavhara and weild DANDA on the culprits. Sources of Law Dharma Vyavhara Charitra Kings Edicts Aims of Judicial Administration Procedure in Courts Ordeals: (balance, fire, water, poison) Burden of Proof Crime & Punishments Classification of Crimes Verbal Abuse(truth no defense) Personal Violence(using criminal force not just by words: assault, battery,causing bodily injury) Theft(king from earliest times duty bound to protect property: system in place for adequate provisions for protection of property but also law provided stringent punishment for theft) Offences against female modesty(seduction, adultery, rape: gravity of the offence varied according to amount of force used also order of birth mattered) Negligence(not just attributed to the state of mind) Minor offences Punishments Wise regard punishments as dharma or source of righteousness. Brahmins subjected to less punishment Four classes of punishments: Censure
Rebuke Pecuniary Corporal Also Death penalty for serious offences like murder.
Common Law(Islamic law of crimes, torts, nuissance Regulations (Quanun-e-Shahi) Customs(Quanun e- urf) Salient Features of Islamic Justice King the representative of God on earth considered the fountain of justice. Qazi the most important person in the entire judicial system, his selection was done very carefully. He was entrusted with multifarious duties Equality before Law: Procedure followed in courts Incompetent Witnesses Crimes & Punishments Offences against God: Adultery, apostasy, drinking wine, theft, false accusation of married women in adultery Offences against the ruler: Rebellion, misrule, moral turpitude Offences against the private citizens: Arson, stealing, gambling, selling of wine. Punishments for various crimes Kisa: Retaliation when killing or wounding did not prove fatal (theory of blood for blood applied) Hadd: Limit: Proceedings usually started by police, punishment was deterrent in nature like stoning, scourging, amputation Tazeer: Prohibition: Reformative, discretionary punishment like imprisonment, exile, corporal punishment, reprimand or other humiliating proceedings. Often in accordance with rank. There were other punishments inflicted by the Qazi and even the king on offenders which were derogatory and humiliating in character 2.4 Basic Characteristics of Muslim Rule over India The law of Shara derived from Usual-ul-usual reserved exclusively for the Muslims Various types of Law were enforced by the court in India: Religious/Canon Law Common Law Kings Firmans Customs Equity Pandits appointed to help Qazi decide Various officers to discharge non judicial functions like marriages, funerals, supervising religious places
The provision also existed for filing appeal, revision, reference & review The law of evidence was most rudimentary as direct evidence was required to prove any offence, more weight given to male vs female, muslim vs hindu evidence. The structure of the courts was created by the Sultans resembled to a great extent the Judicial institutions in Egypt or Turkey
Structure of Judicial Administration: Sultanate Period (1206-1526) Central Courts Provincial Courts : Hierarchy was as under: Governers Court: Adalat Nazim- e- Subah Adalat Qazi e Subah Revenue Court Diwan e Subah Ecclesiastical Court (Sadre E Subah) District Courts: the following persons wielded power Qazi Faujdar Kotwal Amil Judicial Administration in Parganah Judicial Administration in Villages Structure of Judicial Administration: Mughal Period (1526- 1680) Central Courts Emperors Court The chief court of Empire( Qazi ul Qazat) The Chief revenue court(Diwan e Ala) Provincial Courts The court of Governer (Nizam e Suba) The chief Appellate Court (Qazi e Suba) The chief Revenue court (Diwan e Suba) District(Sarkar) Courts Town(Parganah) Courts Village(Dehat) Courts
The Judiciary
Informal rough & ready Justice (1600-1726) English realized the need and strategic relevance of organizing a working Judicial system in the areas under their supervision. Dispute resolving machinery begun in the Presidency towns of Bombay, Madras & Calcutta. Company did not have Judicial powers other than maintaining discipline Political & Administrative situation in the country was unsteady In 1661 the British crown authorized the Governer & Council in each factory to judge all persons (other than members of the Company) in civil & criminal matters (Charter of Charles II, 1661) Great leap from initial charter of 1600. Each Presidency town had its own Judicial System Hesitated deciding serious crimes like murder referred to Company authorities in England Each Presidency also had subordinate Judicial Units; decisions appealable to the court Upon request Crown authorized the Company in 1683 to establish Admiralty Court in all proper places to try cases of trespass, injuries & wrong on high seas or with in charter limits Composition of the Court: Person learned in Civil Law & Two merchants appointed by the Company. Madras Maritime & Admiralty Court presided over all Judicial work with no difficulty, the same happened in Bombay so the Company directors not in a mood to pay the bill for legal experts. Calcutta never got an Admiralty Court and Later Judicial power again concentrated in the Executive. The Governor & the Council. Period upto 1726 marked for its Raw administration of Justice Whatever existed in the name of Courts imparted Justice in a rough & ready manner. Non English men also associated with Judicial work but their status was that of inferior black justice. Authoritative & uniform judicial pattern (1726-1773) Dimensions and needs of the company had changed after a Century Disorganized informal mode no longer suitable. On petition presented by the Company George I granted the charter of 1726 (First Judicial Charter) for want of proper & competent authority for more speedy, effectual & appropriate administration of Justice A Mayors Court established in Madras, Bombay & Port William(Calcutta): A Mayor & 9 Aldermen seven of whom required to be British born.
First appeal to Governor & Council and second to King in Council. Justice administered according to Justice & right. For Criminal matters Governer and 5 Sr. Councilors acted each s Justices of the Peace together forming the Court of Oyer, terminer & Gaol delivery with authority of punish every criminal wrong except high treason. By now there was uniformity & authenticity in the Judicial Administration. Each Presidency got similar Judicial Pattern terminating the period of Individual diverse Judicial experimentation The Privy Council of England the last court of appeal in India for more than 200 years to come. Plan however not complete success since persons manning the court influenced by the Governor & the Council (they could order their removal) No provision for Judges to be legally trained. Therefore still an Executive ridden Judiciary biased in favor of the Company interests. Territorial Jurisdiction limited to Presidency towns in Bengal English men spread to the interior as well. Weakening of the Nawabs authority declared themselves immune from local tribunals as well. Mofussil were distinct from Presidency area for purposes of administration. Separation of Judicial & Executive Powers (1773 onwards) In the absence of appropriate judicial order Company rule in Bengal became a terror. Parliament passed the Regulating Act on 1773 to regulate matters in Bengal. A Supreme Court was established replacing the Mayors Court in an attempt to separate Judicial from the Executive. Territorially did not cover the entire population: Covered Presidency towns & extended over British subjects and Hi Majestys subjects. Many ambiguities remained in definitions, Law to be applied not stated. Nandkumar awarded death sentence for forgery in accordance with English law. In Indian law penalty much simpler. A well intentioned bold step it was politically motivated and ill planned rashly and ignorantly executed. Amendment Act in 1781 exempted Executive from Jurisdiction of the Court; also adalat courts, matter of revenue collection, farmers & other land holders, persons employed by the company &other British subjects made immune from jurisdiction of the court. It also allowed appeal to His majesty from the Sardar Diwani Adalat, the Judicial authority of the Company as Diwan (as independent equal to Supreme Court) Adalat system improves
Hastings started organizing courts in the Mofussil: Each district given Mofussil Diwani(civil) & Mofussil Foujdari(criminal) court. Cornwallis resented the policy of over concentration of authority in the Collector: soon the collector was reduced to administrative and revenue collection duties; Integration of civil & criminal courts was attempted; higher judiciary completely separated from the executive; this however did not last for long (1832) due to load of work. By mid 19th C hierarchy & separation of judiciary & executive at least for civil matters and sound procedural practice had evolved. The policy Racial discrimination ended by 1850 in all presidencies Judicial Duality ends Queens declaration of India as a British dependency in 1858 meant absolute control and responsibility of England for administering India This led to amalgamation of Crown courts with Company Courts Federal polity initiates a federal court Under the Government of India Act 1935, attempt to initiate federal policy in India, resulted in formation of Federal Court 1937(An appellate body)(appeals from the High Court on substantial question of Law otherwise domain and authority of High courts untouched) Independence and the establishment of Supreme Court of India
Once India became a Republic SC established (replacing the Federal Court and the Privy Council, 1949-50) The Lower Judicial Structure remained almost the same(there is a strain of continuity) THE LEGISLATURE Legislative authority was granted to the company in early days of the Company (1600-1726) The nature of this authority however did not differ from that of a municipal or commercial corporation Limited rule making power exercisable by its General Court sitting in England. Expansion of trade & creation of corporation in each Presidency in 1726 involved increased activity in making rules. These legislative bodies were not expected to make rules contrary to reason & English law. The Regulating Act of 1773 (financial instability of the Company in Bengal) was passed to increase direct interference.
It raised the status of the Governor of Calcutta to Governor General & Council + CE of three presidencies, however without the power of veto (still with the Supreme Court, later entrusted to the Governor General in 1789. In a couple of decades Governor & Council of Madras & Bombay given similar powers.
Elected members in Legislature with right to discuss budget and ask questions demanded First concession made in 1892 Act giving opportunity to non officials & natives to participate in the works of the Government Increased number of additional members in central & provincial councils but, official majority maintained. Indians remained unappeased though the principle of representation was recognized for the first time. Liberals coming to power in England saw a re consideration and the 1909 Morley-Minto Reforms allowed some elective representation at Centre, still official majority remained. Deliberative functions of the Provincial councils were increased permitting moving of resolutions on budget or other matters of public interest. They however continued to be powerless in the face of the irremovable executive not answerable, also the veto powers of the Governors & GovernorGeneral left the situation practically unchanged. 1909 plan therefore was a masterpiece of political cunning to disarm the political unrest. Landholders, Muslims, Chambers of Commerce & District Corporations were declared to form Electoral Constituencies (planned wooing of the aristocracy & an important minority). The communal award of 1909 caused a split, but political unrest did not cool down. (British intervention in Persia & Turkey) HOMERULE was demanded under extremist leadership of Bal Gangadhar Tilak. Also contribution of Indian Soldiers in winning WWI was another ground. Eventually the Act of 1919 initiated a sort of responsible government in the Provinces. Provision was made for DYARCHY: Central & Provincial Subjects further subdivided into transferred (Governor with elected members of LC) & reserved(Governor in Executive Council) At the Centre Legislature made Bicameral and elected majority introduced to both houses No element of responsible government was introduced at the Centre A bill rejected by Legislature could still become law upon GGs certification that it was essential for safety, peace or interest of any part of the country. He also retained the right to legislate by Ordinance in emergencies effective for 6 months. Thus there was appearance of devolution & representative legislative authority, the structure remained fully unitary. Though Indian Legislators for the first time received Members privileges. In short the plan fell far short of Indian expectations and refusal to concede saw the Non Co Operation Movement of the 20s & Civil Disobedience of the 30s.
The call this time was for Swaraj not home rule; Domain Status within British Common Wealth in which Sovereignity was to be derived from the people, exercisable constitutionally finally announced in October 1929. Provincial Autonomy 1935 Act contemplated a Federation consisting of British Indian Provinces & native states. Provinces to receive autonomy from the Crown, native states to choose, of their free will to accede to federation. The composition of the Legislature underwent significant change, with bicameral legislature at the center along with 6 provincial legislatures turned bicameral as well. (reason not made public) Legislative Powers of the Centre: Central List (defense & external affairs) Provincial List (items of local interest: local government & public health) Concurrent List(Criminal Law, Labor relations, Personal laws)
The form of government is parliamentary, though an elected President is the Executive head of the state. The Indian Parliament (Central legislature) consists of Council of States (Rajya Sabha) & House of People (Lok Sabha) Rajya Sabha Fixed seats:238 + 12 nominees of the President with special knowledge of literature, science, social science, art. Permanent body, one third of its members retiring after every second year. Vice President of India its ex officio chairman. Lok Sabha Continues for period of 5 years, subject to dissolution by the president Its term cannot be extended except in emergency for one year at a time by Parliament 525 members directly elected by voters in the states, not more than 20 to represent UT+2 nominees of the Anglo Indian Community SC 15%; ST 5% Adult Suffrage granted for the first time at age 21
LOK SABHA
Political groups
UPA (226) NDA (156) Third front (77) Fourth Front (26) Others (55)
RAJYA SABHA
Type Upper House of the Parliament of India Leadership The Chairman Mohammad Hamid Ansari, I Since 11 August 2007 Deputy Chairman of P. J. Kurien, INC the Rajya Sabha Since 21 August 2012 Leader of the Dr Manmohan Singh, House INC Since 22 May 2004 Leader of Arun Jaitley, BJP Opposition Since 3 June 2009 Structure Seats 245 Political groups UPA, NDA, Third front, Others Elections Voting system Single transferable vote Meeting place Chamber of Rajya Sabha, Sansad Bhavan, New Delhi, India Website Type
4. Judicial System & Legal Remedies Supreme Court High Court Sub Ordinate Civil Judiciary 5. Laws
Constitutional Law I & II Procedural Laws o Civil Procedure o Criminal Procedure o Law of Evidence