Indian Law: Understanding The Complex Legal System

Indian law refers to the legal practices and institutions of India, which have a long and complex history. Indian law has been influenced by various foreign legal traditions, including Islamic law following the Muslim conquest of the Indian subcontinent, as well as English common law during the colonial period. After independence in 1947, India retained a common law system with a written constitution at its centre. The legislative process in India involves the introduction of a Bill in either the Lok Sabha or the Rajya Sabha, followed by publication in The Gazette of India. Indian law covers a range of areas, including criminal law, administrative law, labour law, tax law, and family law.

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Influence of foreign law

Indian law has been influenced by various foreign legal traditions over the course of its history. One notable influence is that of British common law, which was introduced during the colonial era. The East India Company, which ruled India in the early 17th century, had the power to make laws and establish courts that followed English common law. This led to the creation of two separate legal systems within India: the Presidencies, which were ruled by English law, and the Mofussil, which dealt with native law, including Hindu and Muslim personal law.

During the British Raj, there was a further break with tradition as Hindu and Islamic law were officially abolished in favour of British common law. This process was led by British lawyer Thomas Macaulay, who became the first Law Member and head of the All-India Legislative Council. Macaulay argued that the British needed to show Indians what good governance looked like and set out to codify Indian law. As a result, many features of the Indian Constitution, including 'Parliamentary government', 'Rule of Law', 'Legislative procedure', 'Single citizenship', and 'Prerogative writs', were borrowed from Britain.

In addition to British law, Indian law has also been influenced by other foreign legal traditions. For example, after the Muslim conquest of the Indian subcontinent, Islamic Sharia law spread with the establishment of the Delhi Sultanate, Bengal Sultanate, and Gujarat Sultanate. Additionally, the Corps of Forty introduced some Turkish law to India.

Today, Indian courts continue to be influenced by foreign law, particularly in common law jurisdictions such as the United Kingdom, Australia, and Canada. Indian judges often rely on foreign court rulings and precedents, especially in cases related to human rights, privacy, gender justice, child custody, family disputes, the environment, and cross-border business dealings. However, foreign judgments are considered persuasive rather than authoritative, and Indian courts must carefully examine the structural similarities and local norms before applying foreign decisions to domestic questions.

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Islamic law in India

India is a secular state, but its constitutional system delegates much legal power to communities themselves, giving religious leaders significant authority within their communities. Islamic law, or Muslim Personal Law (MPL), has been a significant part of the legal framework in India since the establishment of Muslim rule in parts of the region in 1206. The British colonial government introduced the Shariat Act, or Muslim Personal Law (Shariat) Application Act, in 1937 to ensure that Islamic law was practised uniformly among Muslims in matters of personal law. This act abolished various customary laws that had influenced personal matters like marriage, divorce, inheritance, and family relations, replacing them with Islamic principles as outlined in the Quran and Hadith.

The Shariat Act is applicable to all Indian Muslims and requires the use of Islamic jurisprudence in legal proceedings involving marriage, dissolution of marriage, maintenance, gifts, and inheritance. The Dissolution of Muslim Marriages Act of 1939 further strengthened the rights of Muslim women in India, allowing them to seek divorce in a court of law and escape abusive marriages. The Muslim Women (Protection of Rights on Marriage) Act of 2019 also declared instant talaq illegal and a cognizable offence.

Despite these protections, Muslim women are often the most affected by how laws of marriage, divorce, inheritance, and child custody are handled. Islamic feminist groups such as the Bharatiya Muslim Mahila Andolan (BMMA) argue that religious scholars have sustained a flawed, patriarchal interpretation of Islam, and are working to build a more equal and fair family law within India and around the world. They have set up their own Sharia councils, led by women, to offer more gender-just interpretations of Islamic law.

In recent years, there have been debates about abolishing the existing legal system of MPL in India. The passage of a Uniform Civil Code in the state of Uttarakhand, which replaces religion-specific civil laws, has been seen by some Muslims as curbing their religious freedom and interfering with practices such as polygamy. However, Indians from different religions can still follow laws specific to their faiths or opt for a secular code.

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Hindu law

The concept of Dharma is central to Hinduism and encompasses behaviours, duties, rights, laws, conduct, virtues, and the 'right way of living'. Dharma is a complex concept, evolving from the root 'dhrt', which means to hold, maintain, and keep. The ancient Indian texts, including the Vedas, served as the primary sources of Hindu law for about 2,500 years, from 500 BCE to 500 CE. These Sanskrit texts were considered authoritative and eternal, providing a foundation for the legal framework.

The period from 600 BCE to the 12th century CE is considered the heyday of Hindu law, marked by the proliferation of Sanskrit legal texts and commentaries. However, the early dharmasastras assumed compliance, while later texts emphasised punishment or deterrence to ensure the fulfilment of obligations. Rights, obligations, and punishments were determined by caste, age, and status, reflecting the complex social hierarchy within Hinduism. The Manusmriti, or the Code of Manu, is one of the most famous Dharmasastras, laying down rules for the behaviour of different castes and social groups.

In summary, Hindu law is a complex and ancient legal framework rooted in the diverse traditions of Hinduism. It has evolved over time, influenced by various texts, including the Vedas and Dharmasastras. The term "Hindu law" emerged during colonial rule, and its implementation divided Indian society, contributing to ongoing debates between "legal pluralism" and "legal universalism".

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Criminal law

The Indian Penal Code (IPC) was the official criminal code of the Republic of India, inherited from British India after independence. It came into force in 1862 and was repealed and replaced by the Bharatiya Nyaya Sanhita (BNS) in December 2023, taking effect on July 1, 2024. The IPC covered all substantive aspects of criminal law and applied to the whole of India, including offences committed by Indian citizens outside of the country and on registered Indian ships or aircraft.

The IPC included various sections outlining criminal offences and their punishments, such as Section 497, which was criticised for its treatment of women in the context of adultery, and Sections 120B (criminal conspiracy), 121 (war against the Government of India), 302 and 303 (murder), and 376A (rape), among others. The maximum allowable punishment for some of these offences is the death penalty, although there is an ongoing debate about abolishing capital punishment.

In addition to the IPC, India also has the Criminal Procedure Code (CrPC) of 1973, which outlines the procedures for police investigations and court trials. The CrPC classifies criminal offences into categories such as bailable and non-bailable, cognizable and non-cognizable offences, with different procedural treatments. Cognizable offences, such as murder and rape, allow the police to arrest without a warrant and initiate investigations independently. Non-cognizable offences, like cheating and forgery, require a court's permission for police to investigate.

India has also introduced new criminal laws, such as the Bharatiya Nyaya Sanhita (BNS), the Bhartiya Nagarik Suraksha Sanhita (BNSS), and the Bhartiya Sakshya Adhiniyam (BSA), which have replaced the IPC, CrPC, and the Indian Evidence Act. These new laws aim to create a more citizen-centric approach, transform how evidence is handled, and address the evolving nature of crime in the digital age.

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The legislative process

After the First Reading, the Presiding Officer of the House can refer the Bill to a Standing Committee, which examines the general principles and all clauses of the Bill, submitting a report to the House. The Bill is then published in newspapers, and the public is invited to comment, allowing for the amendment of the Bill to incorporate public opinion. The Bill is then introduced in Parliament, where it is debated and voted on.

For an amendment to the Constitution, a bill must be passed by each House of the Parliament by a two-thirds majority. Certain amendments pertaining to federal and judicial aspects must also be ratified by a majority of state legislatures. The President can exercise a veto on the advice of the Council of Ministers, and may also withhold assent, known as a pocket veto. If the President does not assent, Parliament can modify the bill as a constitutional amendment bill, compelling the President's assent.

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