LEGAL HISTORY

SESSION 1

DR. BIRANCHI N. P. PANDA

biranchi@xub.edu.in
Ph: 9953079450/9078879450 (M)
 WHAT IS HISTORY?
• Past- Everything that has happened up until this moment/Past Events
(Example- Hindu Period, Mughal Period, Mandal Commission, NRC Assam, freedom
movements etc.)
• Knowing the Origins: (Example- Medical history of patient, for your
career/job interviewer ask question about your education/past experience
etc.)
• Learn not to repeat mistakes of other people (Example: Jallianwala
bagh/Period of Hitler/Heroshima & Nagasaki)
• Encourage to Complete Past work (Example - Continuous Innovation &
Science Technology)- Radio, TV, Mobile, Bullet Train, Flying Cars etc.)
• Reclaiming Lost Advantages (Examples- Nature/Environment/Peace/Water)
• History is who we are and why we are the way we are- (The existence of
ours/present period/Bonding with Ancestors)
• Study History provides In-depth Knowledge, better understanding on
our culture, traditions and society etc.
 WHAT IS LAW?
• Rules & Regulations in the society for better
living/run the society
• Rules and Regulations to control human behavior
and conduct
• Rules & regulations recognized by the
state/king/Head/Community
• Rules & Regulations not only recognized by state but
also enforced/implemented
Examples: Teacher ask not to bring mobile phone in
the class. Whether its Law or Not?
https://www.youtube.com/watch?v=rOLJeOHF8G0
 UNDERSTAND LEGAL HISTORY
• Legal history has developed exponentially in the
twentieth century
• Aim & Objective: exploring the history of
intellectual developments in law-making in the last two
millenniums in both Europe and South Asia
• Indian Legal History: May be divided into three
periods:
– (1) Ancient or the Period of Hindu Law (Dharma/Bidhi)
– (2) Medieval or the Period of Muslim Law/Mughal Period
– (3) Modern or the Period of Common law brought to the
India by the Britishers.
 EARLY STAGE/ANCIENT PERIOD
INITIAL STAGE:-
• No Judicial Settlement System:- According to Social Science and
Legal History no organised system of Judicial settlement system in
Society earlier
• Fight & Might:- Justice was considered as Private Affairs
• Society & Community Established:- Justice granted by the
Communities and Societies
• Rule of Conduct & Community Rules/Society Rules:– Safeguard
of their interests and upon the violation serious punishments imposed
• Administration of Justice: (1) Search of Truth (2) make People to abide
by the rule of law
• Negative Aspects (Mahabharata):- Few Men involved and delivered
Justice/Heads of community slowly been partial & autocratic
 EARLY STAGE/HINDU LAW
KING, MANU & NARAD:-
• People started praying ‘Brahma’ to grant them King to
deliver justice
• Slowly People select ‘Head’ or ‘King’ to protect their
rights and receive justice
• King considered as Upholder and Administrator of
Justice/Judge
• Developed Codes: King Performed justice through the
book called “Codes”
• Codes: (1) Individual has to pay taxes and in return the
king protect them from every aspects (2) ‘Danda’ has
been introduced to punish and honor the rights of
others.
 VEDIC PERIOD (3000 Year Old)
• Indian Judicial System Started
• Right to Get Justice Introduced
• Vedas:-
– Rig Veda (Considered as Oldest “Indian Sanskruti”)
– Sama Veda
– Atharva Veda
– Yajur Veda
Sources of Hindu Law:
- Shruti- Which is Heard
- Smrit- Which is remembered - secondary work and is
considered less authoritative than Sruti in Hinduism
- Digest & Commentaries- Dayabhaga which is
the digest of all Codes
- Customs- Acharas
 VEDIC PERIOD
• Manusmriti:- Where the King's court as “Sabha” which
was designed to look after the judicial matters, which
was presided, by the King himself.
• In the later ‘Vedic Samhitas’ and ‘Brahmans’ the old
Vedic tribal councils called the ‘Sabha’ developed into
King's court as well as his Councils.
• During those days the law applied was on the basis of
ancient religious texts and authoritative comment.
The law was administered by the king under advice of
his Ministers and learned Brahmins.
• The king also appointed judges to administer the law.
Law at the village level was administered by a village
panchayat consisting office or more members.
 WHO IS A HINDU?
• Any Person who is a Hindu, Jain, Sikh or Buddhist
by religion
• Any person who is born of Hindu parents (One or
Both)
• Any person who is not a Muslim, Christian, Parsi or
Jew and who is not governed by any other law
• Born Hindu
• Convert Hinduism
 DEVELOPMENTS IN VEDIC PERIOD
• Dharma: King is Considered as ‘Dharma’
• Dharma Sutra/Dharmasastra
(Manusmrti)/Nitisastra: The rule and the law of the
kingdom
• Legal Experts & Ministers: To Deliver Justice king
take help of Ministers and Legal Experts
• Mantri Parisad: King Administered
• King is considered as Administrative Head of Civil law
(Dharmasthiya) and Penology (Kantakasodhana)
• Kautilya’s Arthashastra the king was called “Dharma
pravartaka”
•
 DEVELOPMENTS IN VEDIC PERIOD
• Pre-Mauryan: Magadha Period (Bimbisara,
Ajatsatru etc.)
– Haryanka Dynasty
– Saisunga Dynasty
– Nanda Dynasty
• Mauryan: (Chandra Gupta Maurya &
Chanakya/Kautaliya)
• Gupta Periods: (Golden Age of India) Around
200 to 550 AD Followed by Chalukya Dynasty &
Harsh Dynasty
– literature, science, and the arts flourished in India as
never before.
GOLDEN AGE
GLODEN AGE CONTRIBUTIONS
 COURT STRUCTURE IN ANCIENT INDIA
• Justice through “People Court” became a distinct feature of
our judicial system
• Different Courts Structure:
(1) Kula (Family council): Assembly of Impartial Persons
belong to the same family, Caste or community that work as
“Panchayatdar” and “Panchayat mandalis” to resolve the disputes
(2) Shreni (Corporation): Corporations of persons following
the same craft, profession or trade.
(3) Gana (Area Assembly): These were assemblies of
persons belongs to one place but were of different castes and
professions
(4) Adhikrita (Court appointed by the king)
(5) Nripa (Court of the King) or Sasita (Highest Court in
any Kingdom/ King’s Court)
(6) Pratistitha (Mobile Court): Established at different
village and town
 JURISDICTION OF COURTS
• Kula, Shreni and Gana had the power to decide all civil and criminal
disputes except the offences committed with violence
• King is the sole authority and the power to order Fines and
corporal punishments
• Review of Decisions:- Kula -> Shreni -> Gana -> Judges ->
King
• Yajnavalkya – King may review a decision that wrongly given by
him or by other courts; Mughal and Britishers used this later; Now
conferred on the SC under Article 136 of Indian Constitution of
India.
• (Under Article 136, the Constitution of India has vested the Supreme Court
of India with the discretionary power to grant special leave to appeal from any
judgment, order, decree, sentence or determination in any cause or matter passed
by any court or tribunal in India except for those tribunals or courts constituted
under the law related to armed forces. It is a discretionary power.)
 JUDICIAL PROCEDURE
• Early Vedic period: Proper judicial procedure was not laid down as
kings were not giving importance to Judicial procedure
• The Rig-veda for the first time exist clues about the existence of
judicial procedure in civil law
• Stages of Judicial Proceedings: There were four stages of judicial
procedure and the courts enforced their decisions.
(1) statement of his case by the plaintiff or the complainant. This
was called the purna paksh (the Plaint or Bhasa Pada or Pratijna);
(2) the reply of the defendant or the accused person. This was called
the uttra paksh (of the written statement/ Uttara pada);
(3) the actual trial consisting of the taking of evidence to establish or
rebut the case and the arguments on both sides. This was named kriya
(Proof or Evidence on behalf of the Plaintiff and Defendant /Kriya
Pada or Dadhana), and
(4) the decision or judgment of the court, which was designed
nimeya.
 JUDICIAL PROCEDURE
• There were also in existence three kinds of evidence, viz.,
(1) Documents Witness (Sakshi)
(2) Possession (Bhukti) and Likhita,
(3) Other means of Proof consisted of reasoning (Yukti), and
Ordeals (Divyas).
Disputes/ Grounds of Litigation:
These eighteen “Titles of Law” or “Grounds for Litigation” given
by Manu mentions following grounds on which litigation may be
instituted, (1) Non-payments of debts; (2) deposits; (3) sale
without ownership; (4) partnership; (5) non-delivery of gifts; (6)
non-payment of wages; (7) Breach of Contract; (8) cancellation of
a sale or purchase; (9) disputes between owners and herdsmen; (10)
the law on boundary disputes; (11) verbal assault; (12) physical
assault; (13) theft; (14) violence; (15) sexual crimes against women;
(16) law concerning husband and wife; (17) partition of
inheritance; and (18) gambling and betting.
 JUDICIAL PROCEDURE
Purna Paksh:
• The first stage consisted of the Plaintiff submitting the Plaint.
A plaint could be rejected if it contained irrelevant matter or
was meaningless or did not set out the claim in clear and
precise terms.
• The courts after verification of contents of the plaint, and
found in order, issued a summons to the defendant for his
appearance. In criminal cases for the appearance of the
accused person the court issued warrants. In civil suit, if the
defendant tried to escape, then he was liable to be arrested.
• The following persons, however, were exempt from arrest,
viz., 1) minor, 2) an official in the King's service, 3) a
cultivator actually cultivating the land, and 4) an artisan
engaged in his craft and one about to marry.
 JUDICIAL PROCEDURE
• After the appearance of the defendant in pursuance of the summons,
he had to give a reply to the plaintiffs claim either by admitting or
denying the claim of the plaintiff.
• He had also the right to put forward his special plea or plead which
was called pran nyaya. The plaintiff entitled to file his reply to the
written statement.
• The evidence might be oral or documentary. The documentary
evidence was given greater weight. The document attested by the
King, however, find more probative value than a document attested
by private individuals or an unattested document.
• At the time of admitting oral evidence the judges were taking great
care. The court did not allow certain individuals to lead their
evidence viz., (a) close friends or (b) enemies of the parties, (c)
persons convicted of perjury, (d) infants, (e) persons tormented
by desire (whatever that may mean), (f) thieves, and (g) wrathful
men.
 JUDICIAL PROCEDURE
• When there was no evidence forthcoming, in that event the
judge was taking the religious aid. The special mode of trails
existed. They are:
– a) Trial by Oaths,
– b) Trial Ordeals
– C) Trial by Jury
 (LEGAL HISTORY)
SULTANATE/MUGHAL/MEDIEVAL
PERIOD
 MUSLIM/MUGHAL/MEDIEVAL PERIOD
• In India during Muslim rule the judicial
administration was classified into two different
periods, viz., (1) the Sultanate Period and (2) the
Muslim Period

• The Muslim invasions of India began around the

11/12th century AD. (Sultanate Period).

• The Slave dynasty (1206-90), Khilji dynasty

(1290-1320), Tughlaq dynasty (1320-1413), Sayyid
dynasty (1414-51), and Lodhi dynasty (1451-1526).
 SULTANATE PERIOD
• Entry of Islam into South Asia came in the first
century after the death of the Prophet Muhammad.
• The Umayyad caliph in Damascus sent an expedition
to Baluchistan and Sindh in 711 led by Muhammad bin
Qasim. He captured Sindh and Multan.
• Three hundred years after his death Sultan Mahmud of
Ghazni, the ferocious leader, led a series of raids
against Rajput kingdoms and rich Hindu temples, and
established a base in Punjab for future incursions.
• In 1024, the Sultan set out on his last famous
expedition to the southern coast of Kathiawar along
the Arabian Sea, where he sacked the city of Somnath
and its renowned Hindu temple.
 MUHAMMAD GHORI INVADED INDIA IN 1175 A.D.

• After the conquest of Multan and Punjab, he advanced

towards Delhi.
• The brave Rajput chiefs of northern India headed by Prithvi
Raj Chauhan defeated him in the First Battle of Terrain in
1191 A.D.
• After about a year, Muhammad Ghori came again to avenge
his defeat.
• A furious battle was fought again in Terrain in 1192 A.D. in
which the Rajputs were defeated and Prithvi Raj Chauhan
was captured and put to death.

• The Second Battle of Terrain, however, proved to be a

decisive battle that laid the foundations of Muslim rule in
northern India.
 THE DELHI SULTANATE
• The period between 1206 A.D. and 1526 A.D. in India’s history
is known as the Delhi Sultanate period.

• During this period of over three hundred years, five dynasties

ruled in Delhi.

• Nevertheless after several wars, Qutub-Uddin-Aibek became

prominent ruler in the whole of northern part of India >
Muhammad Ghori’

• Muslim rulers did not meddle in the personal laws of India,

and Hindus continued to be governed by their own
personal laws initially. Thus it is crystal clear that during
Muslims period Mohammedan rulers did not upset Hindu laws
or its machinery of administration.
 THE DELHI SULTANATE
• In India during Muslim rule the judicial administration was
classified into two different periods, viz., (1) the Sultanate
Period and (2) the Muslim Period.

• Sultanate Period: Five dynasties ruled over the

Delhi Sultanate sequentially: the Mamluk dynasty (1206–90),
the Khalji dynasty (1290–1320), the Tughlaq dynasty (1320–
1414), the Sayyid dynasty (1414–51), and the Lodi dynasty
(1451–1526).

• Muslim Period: Babur, Akbar, Jahangir, Shaha Jahan etc.

• The judicial administration that existed in Egypt or Turkey

recognized by the Caliph Egypt, as then spiritual overlord is
very similar to the structure of courts, which established
during the Sultanate period.
 THE DELHI SULTANATE
• The period from 1206 to 1526 has been called as the period of
Delhi Sultanate. During this period, India was ruled by a
number of Turkish Sultans who belonged to the Ilbari Turkish
clan. These Sultans were also called Mamluks.

• Five dynasties ruled over Delhi during this period They are the
Slave dynasty, Khilji dynasty, Tughlaq dynasty, the Sayyid
dynasty and Lodi dynasty. Except the Lodis all other Delhi
sultans were Turkish in origin. The Lodis were Afghans.

• Though the Sultanate made some economic improvements in

the provinces, their most notable achievement was holding
off Mongol invasion and unifying Northern India in the
process.
 THE DELHI SULTANATE
• The Sultanate ushered in a period of Indian cultural renaissance.
As a result of the fusion of “Indo-Muslim" cultures new
developments occurred in architecture, music, literature,
religion and clothing.

• It is a fact that the Urdu language was born during this period
as a result of the intermingling of the local speakers of Sanskritic
Prakrits with immigrants speaking Persian, Turkic and Arabic
under the Muslim rulers.
 Administration of the Sultanate
• Quran & Hadis: The policy of the rulers of the Delhi sultanate was
largely influenced by their religion, Islam. Their policies were
influenced by the Ulemas or Muslim intellectuals. In theory the
Delhi sultanate was a theocracy. It was based on Islamic law as given
in Quran and the Hadis expounded by the Ulemas.

• The government established by the Turks was a compromise

between Islamic political ideas and institutions on the one hand and
the existing Rajput system of government on the other.

• Consequently many elements of the Rajput political system with or

without changes became part and parcel of the Turkish
administration in India. Most of the Sultans kept up the pretence of
regarding the caliph as the legal sovereign while they themselves
were the caliph's representatives. Most of them included the name
of the caliph in the Khutba and the Sikka and adopted titles
indicative of their subordination to the caliph.
 Central Government
• The Sultan dominated the central government as he was
the legal head of the state and acted as the chief
executive and the highest court of appeal.

• Chief responsibilities of the Sultan: were

– the protection of the state,
– the settlement of disputes,
– the defence of the realm of Islam,
– the enforcement of laws,
– the collection of taxes, and
– the welfare of people.

• The nobility, civil services and ulema supported the

Sultan. In most cases, a predecessor either nominated
the Sultan, or he had to fight a war of succession.
 Central Government
• The Delhi Sultans could make civil and political
regulations for public welfare. Khutba and sikka were
recognised as important attributes of sovereignty.

• The khutba was the formal sermon following the

congregational prayer on Fridays wherein the name of
the Sultan was mentioned as the head of the community.
Coinage was the ruler's prerogative: his name was
inscribed on the coins (sikka).

• With the exceptions Alauddin Khalji and Mubarak Shah

Khalji, all other sultans styled themselves as duputies of
Caliph with the title such as Nasir-i-amir Ur Momin
assistant of the leader of the faithful or Yamin ul Khalifa
i.e. the right hand man of Caliph.
 Central Government- Positions
• Wazir: The most important post next to the Sultan was that of the
Prime Minister, or the 'Wazir'. He was in charge of the entire fiscal
administration of the realm and all matters relating to income and
expenditures. His department was known as the Diwan-i-Wazir.

• Musharraf-i-Mumalik: This post was equal to the present-day

Accountant General.

• Mustauf-i-Mumalik: This post was equal to the present day Auditor

General. The duties involved auditing the accounts.

• Sadr-us-Sadar: His role was to deal with religious affairs and

immunities to scholars and men of piety.

• Munshi-i-Mumalik: This post dealt with the entire state

correspondence.
 Central Government-Revenue Model
The revenue structure of the empire followed the Islamic traditions. The state depended
on agricultural produce. There were various sources of income of the Delhi Sultans. They
are

(1) KHARAJ (LAND TAX)- This was the mainstay of the finance of the government. It was
charged from Muslims and non-Muslims ranging from 1/5 to 1/2 under various reigns

(2) KHAMUS (1/5 OF THE WAR SPOILS)- It also includes the products of mines.
According to Islamic law, 1/5 of the booty goes to state and rest 4/5 to soldiers

(3) JIZYA- This was the religious tax on non-Muslims which they had to pay for their
protection

(4) ZAKAT- This was a religious tax which was imposed only on the Muslims collected for
the maintenance of the poor Muslims

(5) IRRIGATION TAX- It was imposed by Firoz Tughlaq as 1/10 of the product on the
peasants who used the water of the canals developed by the state. Ala-ud-Din also
imposed two new taxes i.e. house tax and grazing tax.
 Military administration
• The army was administered by Ariz-I Mumalik,. His office
maintained the descriptive roll of each soldier. He was to
assign different tasks to the soldiers and also was responsible
for the transfers of military personnel. Even officers of the
court who held military ranks received salaries from his office.

• He was not the Commander-in-Chief of the army but was its

Collector General. He exercised great influence on the state.
 Judicial Administration
• The Sultan used to sit at least twice a week to hear the
complaints against the officials of the state.

• Qazii-Mumalik used to sit with the Sultan to give him legal

advice.

• Decisions were made according to the Shariah. Cases of non-

Muslims were decided according to their own religious laws.
 Provincial administration
During sultanate period, Sultanate was divide into lqtas
(regions). The head of iqtas has various names including Muqti
or Wali or Nazim.

The main duty of the Muqtis was to maintain the peace,

establishment and extension of authority of government and
recovery of the state dues.

The governors were in charge of big or more important provinces

exercised wider power.
 Local administration
• Local administration was vague and undefined and basically
traditional system.

• The provinces were divided into 6 parts headed by shiqdars

with main functions to maintain law and order and protect
people against oppression of zamindars and had to perform
military obligation.

• The shiqs were further divided into parganas and had

different officials.
 GRADATION OF COURTS
• In the Sultanate period the Sultan was the supreme
authority to administer justice in his Kingdom. In
the name of Sultan, justice was administered in
three capacities:
– a) Diwan-e-Qaza: He dispensed justice through the
Diwan-e-Qaza as arbitrator in the settlement of disputes
of his subjects.
– b) Diwaii-e-Mazalim: He dispensed justice through the
Diwan-e-Muzalim as head of the bureaucracy.
– c) Diwan-e-Siyasat: Being the Commander-in-Chief of
Forces constituted Diwan-e-Siyasat through his military
commanders to try the rebels and those charged with
high treason
 GRADATION OF COURTS
• During Sultanate period, there was systematic
classification or the gradation of the courts, which
were as under:

A) Central Courts: (Besides these courts, there were six

Central Courts viz.,
(1) the King's Court,
(2) Diwan-e-Muzalim,
(3) Diwan-e-Risalat,
(4) Sadr-e- Jahan's court,
(5) Chief Justice Court and,
(6) Diwan-e-Siyasat)
 GRADATION OF COURTS
– B) Provincial Courts:
• ((1) Adalat Nazim Sabha,
• (2) Adalat Qazi-e-Sabah,
• (3) Governor's Bench (Nizim-e-Subha's Bench),
• (4) Diwani-e-Subah and
• (5) Sadre Subah)

– C) District Courts:
• ((1) Qazi,
• (2) Dadbacks or Mir Adils,
• (3) Faujadaris,
• (4) Sadre Amirs and
• (5) Kotwals)
– D) Parganah Courts:
• (1) Qazi-e-Paraganah and
• (2) Kotwal)

– (E) Village Courts

 GRADATION OF COURTS
• During the Muslim rule, the Emperor was
regarded as the sole fountain of justice. There
were three courts, which were established
conferring well-defined powers at Delhi, which was
the capital of Mughal Emperors in India viz.,
– (1) the Emperors court;
– (2) the Chief Court of Empire; and
– (3) the Chief Revenue Court.
 JUDICIAL PROCEDURE
• The procedures adopted by the Popular Courts were
entirely simple and primitive. In fact there was no
uniform administration of justice; no certain means
of presenting a suit and no fixed rule of proceeding
after it had been filed.

• In addition to this there was no hard and fast rule to

institute suits and resolve the disputes.

• Neither there were regular and a full-fledged legal

profession, nor any elaborate provisions for the law
of evidence. Hence justice could be delivered speedily
and effectively
 JUDICIAL PROCEDURE

• In those days the following did not exist viz., (1)

Tedious briefs of cases, (2) Methodized forms,
(3) Harangues to keep the parties longer in
suspense.

• The decisions of these Popular Courts were almost

same and punishments inflicted were: (1) Fines, (2)
Public degradation, (3) Reprimand, and (4) Ex-
communication.
 MAJOR POINTS

• Akbar Period: Discriminatory laws against the non-

Muslims and established one Uniform systems of Justice
for all (respect for Hindu Laws)

• Jahangir: Any one can ring the bell to get justice, if king
thought fit, he delivered justice and that is final as there is no
appeal system

• Slowly strict Islamic laws came to an end on the arrival of

Britishers & the rise of Marathas
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