Keith Mack
Indian law has evolved from customary practices and religious prescriptions to modern well-codified acts and laws. The various stages of evolution of Indian law are classified as the Vedic period, the Islamic period, the British period, and post-independence. During the Vedic period, the main aim of the law was to preserve dharma, which means righteousness and duty. Ancient India had a distinct tradition of law, with independent thought in legal theory and practice. With the Muslim conquest of the Indian subcontinent, Islamic Sharia law spread, and later, during the British Raj, Indian Law became more aligned with British Common Law. In modern times, India has around 891 Central laws and many State laws for each state. On July 1, three new laws came into force, replacing the Indian Penal Code, 1860; the Indian Evidence Act, 1872; and the Code of Criminal Procedure, 1882.
| Characteristics | Values |
|---|---|
| Stages of evolution of Indian law | Vedic period, Islamic period, British period, post-independence |
| Main aim of the law during the Vedic period | Preserve "dharma", which means righteousness and duty |
| Categories in Dharmashastra | âchâra, vyavâhara, prâyaschitta |
| Legal procedures during the Vedic period | Filing cases (vyavahara), modern plaint (purvapaksha), written statement (uttar), trial (kriya), verdict (nirnaya) |
| Types of trials during the Vedic period | Trial by jury, trial by ordeal |
| Features of the ancient Indian legal system | Absence of lawyers, preference for a bench of two or more judges |
| Ruling system during the 18th century | Exterior (Presidencies ruled by English Law), Interior (Mofussil, governed by native law) |
| Number of Central laws in India as of August 2024 | 891 |
| Number of State laws in India | 30 |
| Recent laws | Citizenship Amendment Act, 2019, Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act |
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What You'll Learn
The evolution of Indian law
The Islamic conquest of the Indian subcontinent brought Islamic Sharia law, established by the Delhi, Bengal, and Gujarat Sultanates. During the 17th century, the Mughal Empire's ruler Aurangzeb compiled the Fatawa-e-Alamgiri, which governed most parts of South Asia.
The British colonial period saw a significant shift in Indian law. The East India Company introduced a dual legal system, with English law governing colonial officials and native law, including Hindu and Muslim personal law, applied to Indians. This system was problematic and led to calls for reform. Thomas Macaulay, a British lawyer, played a pivotal role in the codification of Indian law, aiming to align it with British Common Law. This process, begun in 1884, resulted in the marginalisation of Hindu and Islamic laws and the dominance of colonial legal principles.
Post-independence, India developed a modern, well-codified legal system based on a constitution. Notable reforms include the uniform civil code adopted by some states, banning practices like "Triple Talaq", and the introduction of new laws to replace colonial-era legislation. However, human rights organisations like Amnesty International have criticised certain laws for targeting Muslims and restricting freedom of expression.
Throughout its evolution, Indian law has been influenced by various factors, including customary practices, religious prescriptions, and external legal traditions. The current judicial system retains some connections to its historical roots while reflecting contemporary societal values.
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The influence of religion
Indian law has historically been influenced by religion, with Hindu and Islamic laws governing society for extended periods. During the Vedic period, the primary objective of the law was to preserve "dharma", encompassing righteousness, duty, legal duties, and religious duties. This included rituals, personal hygiene, and modes of dress. The Dharmashastra, a significant text, outlined rules for daily rituals, life-cycle rites, caste-specific duties, and legal procedures.
The arrival of the East India Company in the 18th century marked a shift towards British Common Law. The company established a dual legal system, with English law governing the exterior or Presidencies and native law, including Hindu and Muslim personal law, in the interior or Mofussil. This period witnessed the marginalisation of Hindu and Islamic laws in favour of the colonisers' legal system.
The Islamic conquest of the Indian subcontinent introduced Sharia law, which spread with the establishment of various sultanates. The Mughal Empire's ruler Aurangzeb further consolidated Islamic influence by compiling the Fatawa-e-Alamgiri with Arab and Iraqi Islamic scholars, shaping the governing principles across most parts of South Asia.
In the modern era, India's judicial system remains influenced by its colonial past, with laws derived from Britain and other Western nations. However, religion continues to play a role in shaping certain aspects of Indian law. For instance, the protection of religious beliefs has led to regulations around cow slaughter, respecting Hindu sentiments. Additionally, ""freedom of religion" acts have been passed by several states to prohibit "forcible" or "induced" religious conversions, particularly targeting Christian missionaries.
While the Indian Constitution guarantees religious freedom, the Citizenship Amendment Act, 2019, has been criticised for legitimising discrimination against Muslims in asylum-seeking and refugee processes. Furthermore, the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act effectively criminalised consensual interfaith marriages, highlighting ongoing religious influence in legal matters.
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British colonialism
India's legal system has evolved significantly over time, from the Vedic period's focus on preserving "dharma" or righteousness and duty, to the Islamic period's implementation of Sharia law, and finally, the British colonial period which had a lasting impact on the country's legal institutions.
During the British Raj, the Anglo-Hindu law was introduced, marking a shift towards the codification of Indian Law. This process, initiated by British lawyer Thomas Macaulay in 1883, aimed to reform India's legal system and bring it more in line with British Common Law. Macaulay believed that the British had a duty to introduce representative institutions to India, claiming that Indians did not understand "good governance". As a result of his efforts, Indian laws became increasingly based on British legal cases and rulings, marginalising long-standing Islamic and Hindu Laws.
The British colonial legal system in India was structured with Presidencies or "exterior governments" ruled by English Law and staffed by English judges and lawyers, while the Mofussil or "interior governments" dealt with native laws, including Hindu and Muslim personal law, Company Regulations, and Islamic criminal law. This dual legal system created complexities, especially when non-company Europeans committed crimes in India, as it was unclear which legal system they should be subjected to. Moreover, Europeans had the advantage of being able to bring suit against Indians in any Mofussil court, while Indians had to appeal to the Supreme Court for similar actions.
The introduction of British Common Law during the colonial era had a lasting impact on India's legal landscape. The present judicial system in India largely derives from the British model, with limited connections to the pre-colonial Indian legal traditions. This colonial legacy has been a source of contention, with some criticising the retention of problematic provisions, such as sedition, in modern Indian law.
In conclusion, British colonialism significantly shaped the legal framework of India, moving it away from its independent tradition of legal theory and practice. The imposition of British legal principles and the marginalisation of native legal systems had long-term consequences, and the Indian legal system continues to grapple with this colonial legacy in the present day.
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Human rights in modern India
India is the world's largest sovereign, secular, socialist democratic republic, and its human rights issues are complicated by its large size, population, and diverse culture. The Constitution of India provides for fundamental rights, including freedom of religion, freedom of speech, separation of executive and judiciary, and freedom of movement within the country and abroad. India also has an independent judiciary and bodies to investigate human rights issues, such as the National Human Rights Commission. Despite these provisions, India has faced criticism from Human Rights Watch and has been ranked as only "partly free" by Freedom House.
Historically, Indian law evolved from customary practices and religious prescriptions, such as Hindu and Islamic laws, to modern well-codified acts and laws based on a constitution. During the British Raj, Indian law became more aligned with British Common Law, and colonial-era laws were implemented, such as the Indian Penal Code, 1860, the Indian Evidence Act, 1872, and the Code of Criminal Procedure, 1882. These laws have since been replaced by new laws, including the Bharatiya Nyaya Sanhita, Bharatiya Sakshya Adhiniyam, and Bharatiya Nagarik Suraksha Sanhita, which came into force on 1 July. However, these new laws have been criticised for retaining problematic provisions, including sedition.
Communal conflicts between religious groups, particularly between Hindus and Muslims, have been prevalent in India since its independence from British rule. Muslim women in India are one of the major groups deprived of their equality within the human rights framework due to cultural and religious reasons, including patriarchal interpretations of the Quran and Islam. Additionally, Muslim and Christian minorities have accused authorities of not doing enough to protect their rights, and there have been instances of authorities unlawfully demolishing properties belonging to religious minorities.
Human rights defenders, activists, journalists, and critics in India have faced challenges, including weaponisation of national financial and investigation agencies, travel restrictions, and unlawful detention. There have been reports of police brutality and custodial deaths, with a high number of deaths in police custody attributed to torture. India's response to UN communications regarding human rights concerns has also been lacking, with many visit requests left unanswered.
Despite these issues, there have been some positive developments in human rights in India. For example, the Supreme Court of India banned the Islamic practice of "Triple Talaq," a form of divorce that was seen as discriminatory towards women, and this was welcomed by women's rights activists. Additionally, human rights activists have secured bail in some cases, such as Gautam Navlakha, a journalist who spent four years in pretrial detention.
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The judicial system
The evolution of India's judicial system has been influenced by various factors, including customary practices, religious prescriptions, and foreign rule. During the Vedic period, the legal system focused on preserving "dharma", which encompasses both legal and religious duties, with an emphasis on rituals and proper conduct for different castes. Ancient India had a unique legal theory and practice, with an absence of lawyers and a preference for benches of multiple judges.
With the Muslim conquest of the Indian subcontinent, Islamic Sharia law spread, and the Delhi, Bengal, and Gujarat Sultanates were established. The Mughal Empire, which became the world's largest economy in the 17th century, compiled the Fatawa-e-Alamgiri with Arab and Iraqi Islamic scholars, influencing most of South Asia.
During the British colonial era, India's legal system underwent significant changes. The East India Company implemented a dual legal system, with English law governing the exterior Presidencies and native law, including Hindu and Muslim personal law, in the interior Mofussil. This led to issues regarding the applicable legal system for non-company Europeans committing crimes in India. The British period marked the codification of Indian law, aligning it with British Common Law and marginalising Hindu and Islamic laws. Thomas Macaulay, a British lawyer, played a key role in this process, arguing that Indians did not understand good governance and that the British had to show them.
The current Indian judicial system is largely derived from the British model, with limited connections to pre-British legal institutions. It consists of a hierarchical structure with lower courts, high courts, and the Supreme Court at the apex. The Supreme Court of India, as the highest judicial body, has the power to interpret the constitution and strike down laws that are unconstitutional. It plays a crucial role in safeguarding citizens' rights and ensuring the rule of law.
In recent times, India's judicial system has faced challenges in addressing issues such as human rights violations, freedom of expression, and religious discrimination. Amnesty International has highlighted cases of journalists, human rights defenders, and activists facing detention, charges under anti-terror laws, and travel restrictions. The Supreme Court has intervened in some instances, granting bail to individuals like journalist Gautam Navlakha, who spent four years in pretrial detention. However, the colonial-era penal laws and criminal procedures have been repealed and replaced with new laws, despite retaining problematic provisions like sedition.
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Frequently asked questions
The three categories of Dharmashastra are âchâra, vyavâhara, and prâyaschitta.
On 1 July, Bharatiya Nyaya Sanhita, Bharatiya Sakshya Adhiniyam, and Bharatiya Nagarik Suraksha Sanhita came into force.
The three main periods of Indian law are the Vedic period, the Islamic period, and the British period.
Three examples of Central Acts in India are the Indian Penal Code, the Indian Evidence Act, and the Code of Criminal Procedure.
The three types of trials in the Vedic period were trial by jury, trial by ordeal, and trial by purification.
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