Anaya Nolan
India's legal system is derived from three primary sources: common law, religious law, and civil law. Indian law has been influenced by British colonisation, which saw the introduction of the common law system. The common law system in India was first established in the eighteenth century through a royal charter, which granted the East India Company the power to make laws and govern its official representatives in India. The Indian legal system has since evolved and now includes laws from Ireland, the United States, Britain, and France, as well as adherence to United Nations guidelines on human rights and environmental law.
| Characteristics | Values |
|---|---|
| Influence of British common law | The Indian legal system is influenced by British common law due to the period of British colonial rule. |
| Judicial precedent | Indian law is governed by judicial precedent, where previous court decisions are used as a reference for similar future cases. |
| Statutory law | India also has a written legal code, with statutes governing various areas such as damages, civil procedure, and torts. |
| Religious and civil law influences | India's legal system also incorporates elements of religious law (Hindu and Islamic) and civil ('romanist') law. |
| Uniform legal system | India has a uniform legal system across the country, with state courts handling both federal and state issues. |
| Independent judicial organ | India has an independent judicial system, with the first step towards independence being the establishment of a Supreme Court in the 18th century. |
| High Courts | India has High Courts established in place of the Supreme Court in each presidency town and other provinces, which exercise similar powers and have appeals to the Privy Council. |
| Indian Penal Code | The Indian Penal Code, drafted under the first Law Commission, governs criminal matters and was influenced by British common law. |
| Post-partition retention | After partition, India retained its common law system, which continues to show European and American influence. |
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What You'll Learn
British Rule and the East India Company
The British East India Company was founded in 1600 under Queen Elizabeth I to exploit trade with East and Southeast Asia and India. It established its first trading post in Surat, India, around 1612, and gradually expanded its presence in the region.
The East India Company was a private venture with a royal charter, which gave it political weight. It rented ships from private companies to transport goods and had a formidable army of soldiers to protect its interests. The company fought a series of wars with the French East India Company in the early 1700s, gaining control of the strategic region of Bengal after the Battle of Plassey in 1757. It also competed with the Dutch East India Company for control of the spice trade.
The company's transformation from a trading corporation to a colonial power began with its victory in the Battle of Plassey. It expanded its territories and consolidated power in the south, southwest, and northwest of India. The company ruled indirectly through strategic alliances with princely states, which were nominally autonomous but submitted to the company's political authority. It also added to its army by incorporating irregular "local corps".
The East India Company began to witness increasing rebellion and insurgence from its Indian territories in the early 19th century due to its rapid expansion across the subcontinent. The Indian Rebellion of 1857, sparked by objections to rifle cartridges rumoured to be smeared with forbidden animal fat, was a significant uprising that led to the suppression of the revolt and the end of company rule in India.
The East India Company also had a significant impact on Indian society, including the spread of Christianity and access to education through missionary activities. Several social reforms were instituted, such as the abolition of sati, a Hindu custom where a wife immolates herself after her husband's death, and the Hindu Widows' Remarriage Act of 1856, which provided legal safeguards for remarrying widows. The company also began irrigation works and the construction of India's first railway network in 1850.
The company's involvement in the illegal opium trade with China, which began in the early 1800s, led to the Opium Wars and further highlighted its pursuit of profit over ethical considerations.
In 1858, the Government of India Act ended the East India Company's rule, and its territories became administered by the British Crown, marking the beginning of the British Raj. The company continued to exist until 1874, but its role in India had ended.
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The Indian Rebellion of 1857
The immediate cause of the rebellion was the introduction of new rifle cartridges for the Indian soldiers by the British East India Company. Rumours spread among the sepoys that the grease used to lubricate the cartridges was a mixture of pig and cow fat. The idea of having oral contact with the cartridges was deeply offensive to both Muslims and Hindus, and the perception that the cartridges were tainted added to the larger suspicion that the British were trying to undermine Indian traditional society. On March 29, 1857, a sepoy named Mangal Pandey attacked British officers at the military garrison in Barrackpore, and the rebellion began.
The uprising began in Meerut and quickly spread to other parts of northern and central India, including Delhi, Agra, Kanpur, Lucknow, Jhansi, and Gwalior. The rebellion was marked by intense struggles at these centres, with British operations to suppress the uprising led by Colin Campbell and Hugh Rose. The rebellion ultimately failed, and British rule was strengthened in India with the passing of the Government of India Act 1858, which established a more direct form of rule by the Crown.
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The Indian Constitution
India is a Sovereign Socialist Secular Democratic Republic with a parliamentary system of government. The Republic is governed by the Constitution of India, which is the supreme legal document of the country. The Constitution provides for a parliamentary form of government, which is federal in structure with certain unitary features.
The original Indian Constitution is hand-written, with each page decorated by artists from Shantiniketan. It is the world's longest written national constitution for a sovereign nation. At its enactment, it had 395 articles in 22 parts and 8 schedules. It has had more than 100 amendments since it was enacted. The Constitution lays down the framework that demarcates the fundamental political code, structure, procedures, powers, and duties of government institutions. It also sets out fundamental rights, directive principles, and the duties of citizens.
India's legal system is based on common law, which was introduced during the period of British colonial rule. The common law system was first developed in England and then spread throughout the British Empire. It refers to unwritten, judge-made laws based on judicial precedent. During the British rule in India, Hindu and Islamic laws were abolished in favour of British common law. The Indian legal system today still largely adheres to the common law system, with certain differences. For example, Indian tort law includes remedies for constitutional torts and a system of absolute liability for businesses engaged in hazardous activities.
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Influence of Hindu and Islamic Law
The influence of Hindu and Islamic law on the common law system in India is a complex and evolving topic. The term "Hindu law" emerged during colonial rule in the Indian subcontinent when British officials decided that the European common law system would not be implemented in India. Instead, they opted to rule Hindus under "Hindu law" and Muslims under "Muslim law" or Sharia. This decision shaped the legal landscape of India, leading to the development of separate personal laws for different religious communities.
Hindu law, as conceptualised by the British, was derived from Dharmaśāstra, specifically the Manusmriti text. However, scholars debate the extent to which these texts reflected actual legal practices in pre-Islamic India. The British misinterpreted the Dharmaśāstra as codes of law, when in reality, they contained jurisprudence commentary rather than statements of positive law. The early period of Anglo-Hindu Law (1772–1828) was structured along the lines of Muslim law practice, including the use of court pandits to aid judges in interpreting Shastras.
Islamic law, or Sharia, has also left an indelible mark on India's legal system. The code of Muslim law was readily available in texts such as al-Hidaya and Fatawa 'Alamgiri. The British attempted to translate and understand Islamic law to create a body of laws that appeared legitimate to their Muslim subjects while being intelligible to British judges. This endeavour resulted in the birth of Anglo-Muhammadan law, which aimed to blend Islamic law with the British concept of precedent and stability.
Personal laws in India vary by religion, with each community adhering to its specific customs and legislation. For Hindus, laws such as the Hindu Marriage Act, 1955, the Hindu Succession Act, 1956, and the Guardianship and Adoption Act, 1956, govern matters like marriage, divorce, adoption, and succession. Islamic law, on the other hand, does not recognise adoption but acknowledges the concept of paternity. The Muslim Women Protection of Rights on Divorce Act, 1984, was formulated to protect Muslim women's rights in divorce proceedings.
While the Indian Constitution now adheres to United Nations guidelines on human rights and environmental law, personal laws continue to play a significant role in India's legal landscape, with each state having its own approach. For example, while most states do not require the registration of marriages and divorces, the state of Goa has implemented a uniform civil code, providing a common law for marriages, divorces, and adoptions across all religions.
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Tort Law in India
India's legal system has been influenced by various legal traditions throughout its history. During the British Raj, Hindu and Islamic laws were abolished in favour of British common law. This common law system, developed in England, was introduced to India and other parts of the world through colonial expansion.
Indian courts have selectively applied the law of tort, considering whether it suits the circumstances and norms of Indian society. For instance, in the case of M.C. Mehta v. Union of India, the Indian judiciary supported Winfield's theory of tort, which states that any unjustifiable harm without excuse will be treated as a tort. This differs from Salmond's theory, which asserts that liability arises only when the wrong falls under specific nominate torts.
Indian tort law also recognises specific torts such as assault, battery, and false imprisonment. Assault, as defined in Section 351 of the Indian Penal Code, includes making a gesture or preparation that causes another person to apprehend the use of criminal force. Battery, as per Section 350, involves the intentional use of force without consent, intending to cause injury, fear, or annoyance. False imprisonment refers to the complete deprivation of liberty, even if brief, without lawful cause.
In summary, tort law in India is shaped by its colonial legal heritage, judicial precedent, and the unique features of the Indian legal system and societal context. It aims to hold tortfeasors accountable and provide remedies to those who have been wronged.
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Frequently asked questions
The common law system in India is a legacy of British colonisation. It refers to the unwritten, judge-made law as opposed to written law (statutory law). It was developed by judges through the decisions of the courts.
The common law system was first developed in England and spread to India during the British Empire. In the 1600s, the East India Company was granted the ability to make laws, which led to the British Parliament taking control of India from the company in 1857.
India's legal system is drawn from three primary sources: the common law, religious law, and civil ('romanist') law. Indian legislators have made departures from English common law according to the unique conditions of India and considerations of equity.
