Lohitashwa Pratap Singh, Student of Law, VIT Law School, Chennai
In India the concept and principles and rules of the English law initially spread over a few provinces and gradually over all the states in India. It is well known that British came to India to advance themselves, to establish themselves as traders and acquired power and having acquired power, declared themselves as rulers of the whole country. There were no special codified laws formed for the native people thus instruction were given to English administrators and judges to decide cases according to justice, equity and good conscience, for which no rule was clearly laid down in the Acts of Parliament. According to Rankin “the influence of the common law in India is due not so much to a reception, though that has played no inconsiderable part, as to a process of codification carried out on the grand scale … But in fact the English Law in India like the Roman Law in Medieval Europe enjoyed a persuasive authority as being an embodiment of written reason, and impressed its own character on a formally independent jurisprudence. The manner in which the English Law took place was altered but its extend was in no way diminished when in the 19th century the law was codified in India.
The common law of England actually means the unwritten legal doctrines which includes English customs and traditions developed by the English courts in the past centuries. It does not include the statute law of England. The Common law was a critical part of the British system of administration of justice. The basic idea under the British rule in India was that, when Indian laws were not codified to impart justice on the basic of equity, fairness, justice and the world is used synonymously for natural justice. In the beginning of the Adalat system in India, application of the principles of justice and fair play mainly depend on the discretion of a judge and the discretion of one judge in those times differed from the discretion of another judge. This resulted in confusion, uncertainty and injustice.
The common law system – a system of law based on recorded judicial precedents- came to India with the British East India Company. The company was granted charter by King George I in 1726 to establish “Mayor’s Courts” in Madras, Bombay and Calcutta (now Chennai, Mumbai and Kolkata respectively). Judicial functions of the company expanded substantially after its victory in Battle of Plassey and by 1772 company’s courts expanded out from the three major cities. In the process, the company slowly replaced the existing Mughal legal system in those parts.
Following the First War of Independence in 1857, the control of company territories in India passed to the British Crown. Being part of the empire saw the next big shift in the Indian legal system. Supreme courts were established replacing the existing mayoral courts. These courts were converted to the first High Courts through letters of patents authorized by the Indian High Courts Act passed by the British parliament in 1862. Superintendence of lower courts and enrolment of law practitioners were deputed to the respective high courts.
During the Raj, the Privy Council acted as the highest court of appeal. Cases before the council were adjudicated by the law lords of the House of Lords. The state sued and was sued in the name of the British sovereign in her capacity as Empress of India.
During the shift from Mughal legal system, the advocates under that regimen, “vakils”, too followed suit, though they mostly continued their earlier role as client representatives. The doors of the newly created Supreme Courts were barred to Indian practitioners as right of audience was limited to members of English, Irish and Scottish professional bodies. Subsequently rules and statutes culminating in the Legal Practitioners Act of 1846 were passed which opened up the profession regardless of nationality or religion.
Coding of law also began in earnest with the forming of the first Law Commission. Under the stewardship of its chairman, Thomas Babington Macaulay, the Indian Penal Code was drafted, enacted and brought into force by 1862. The Code of Criminal Procedure was also drafted by the same commission. Host of other statutes and codes like Evidence Act (1872) and Contracts Act (1872)
During the early period one of the main objective of the East India Company was to make a little alteration as possible in the existing state of the Mohammedan Law and system of criminal courts. The Mohammedan Law, therefore was administered by the criminal courts in India for long. As soon as the Company gained some strength it realised the necessity to make important changes in certain matters of Mohammedan Law of crimes as according to them no civilised government would like to tolerate them. As Ibert said “It was impossible to enforce the law of retaliation for murder, of strong for sexual immorality or of mutilation for theft or to recognise the incapacity of unbelievers to give evidence in cases affecting Mohammedans. Warren Hasting and Lord Cornwallis frequently criticised the provisions of the Mohammedan Criminal Law and whenever they got any opportunity they introduced changes on it.
In Harrington’s Analysis of the Bengal Regulations, giving a true picture of the Mohammedan Criminal Law he states that it became like a patchwork quilt. Regulation VI of 18 of 1832 marked the end the Mohammedan Criminal Law was not completely set aside till the penal code of 1860 and the Criminal procedure code of 1861 were enacted and came into operation. The process of superseding native law by English Law, so far as the administration of criminal justice was concerned was completed after the enactment of the Indian Evidence Act in 1872.
The Charter of Act of 1833 introduced important changes in the constitution of East India Company and the system of Indian administration. It established, for the first time in the history of British India, a single legislation for all the presidency Towns as well as the Mofussils and appointed the First Indian Law Commission. By appointing the first law commission, the British Parliament tried to achieve in the words of Lord Macaulay “Uniformity where it was possible, diversity where it was necessary but in all cases certainty”.
The First law commission, headed by Lord Macaulay, submitted many reports on various laws. There reports were based on a detailed study primarily of the English Law. The English Law, to the extend it suited Indian Conditions, usages and customs, was thus systematically imported into India. The codification of Indian Law was a systematic import of English Law into India through the four Law Commissions. Though the First Indian Law commission under the Chairmanship of Lord Macaulay submitted its Report on penal code, it was not until 1860, that the Indian Penal Code was placed on the Indian statute book.
Apart from English Law, the French Code was of great help as a model and on many questions it afforded valuable suggestions which were utilised by the Law Commission in framing the Indian Penal Code. The Code of Civil Procedure was passed in 1859 and the Criminal Procedure Code was passed in 1861. The law of procedure was supplemented by the Evidence Act, the limitation Act and by the Specific Relief Act., which stands on the broader land of substantive and adjective law.
In India codification has been brought about by the pressure of practical necessity. In India it became necessary to draw up, for the guidance of untrained judges and Magistrates, a set of rules which they could easily understand and which were adapted to the circumstances of the country. But since the framers have been English, it is a natural corollary that English notions must have been imported as has been.At the dawn of independence, the parliament of independent India was the forge where a document that will guide the young nation was being crafted.
It will fall on the keen legal mind of B. R. Ambedkar to formulate a constitution for the newly independent nation. The Indian Bar had a role in the Independence movement that can hardly be overstated – that the tallest leaders of the movement across the political spectrum were lawyers is ample proof. The new nation saw its first leader in Jawaharlal Nehru, and a paternal figure in M. K. Gandhi, both exemplary lawyers. Perhaps it is the consequent understanding of law and its relation to society that prompted the founding fathers to devote the energy required to form a Constitution of unprecedented magnitude in both scope and length.
The Constitution of India is the guiding light in all matters executive, legislative and judicial in the country. It is extensive and aims to be sensitive. The Constitution turned the direction of system originally introduced for perpetuation of colonial and imperial interests in India, firmly in the direction of social welfare. The Constitution explicitly and through judicial interpretation seeks to empower the weakest members of the society.India has an organic law as consequence of common law system. Through judicial pronouncements and legislative action, this has been fine-tuned for Indian conditions.
The Indian legal system’s move towards a social justice paradigm, though undertook independently, can be seen to mirror the changes in other territories with common law system.From an artifice of the colonial masters, the Indian legal system has evolved as an essential ingredient of the world’s largest democracy and a crucial front in the battle to secure constitutional rights for every citizen.
We own the English common law for the fundamental principles of our public law the rule of law, individual freedom, and limited powers of the government. In the sphere of administration of justice, the system of trial, the legal profession, the independence of judiciary, system of judicial precedents and justice according to law, are all based on the principles of English law. The doctrine of precedents which is deep rooted in English Law, was first introduced in Indian in 1726, when the Mayor’s Court were established in India.
Since then the judicial precedents have played a very important role in shaping Indian law. Section 212 of the Government of India Act also provided that the law lay down by the Privy Council would be binding on all courts in India. It also followed that every court was absolutely bound by the decisions of the superior courts. Article 141 of the Indian Constitution, 1950, provides “the law declared by the Supreme Court shall be binding on all courts within the territory of India”.
This is based on English principles, though by this provision there is some departure from the English practice. In England, the house of Lords is bound by its own decision but in India, the Supreme Court is not bound by its own decisions. The Supreme Court of India, the highest judicial organ in India is free to change the law which is laid down in an earlier case.
Concluding, it can be stated that the British Empire has left an imperishable contribution to the enrichment of India’s Legal heritage. Apart from this but equally of importance is the fact that with the ending of British Raj in India the time is ripe enough for us to make a beginning of new understanding of India’s national peculiarities in the legal sphere.A study of India’s ancient history will reveal the fact that what we now call “the unique principles of English common law” was in fact originated in India.
During Mediaeval and British periods, we were made to forget our own “ancient Hindu period” which was our glorious past in various respects. The principles of Indian philosophy, traditions, social and legal order, which formed the backbone of our glorious past, can be correlated to meet the growing problems and new conditions of India today. Let us not forget India still remains her intellectual treasure despite the influence of English Common law.
- Landmarks in Indian Legal and Constitutional History by V.D Kulshreshtha
- M P Jain Indian Constitution.
- M P Jain Outline of Indian Legal and Constitutional History.
- India: A history by John Keay
- The Last Mughal: The Fall of a Dynasty: Delhi, 1857 by William Dalrymple