Keith Mack
Indian law has evolved through various stages, from customary practices and religious prescriptions to the modern codified acts and laws based on a constitution. Ancient India had a distinct legal tradition, with Dharmaśāstra playing a significant role. The Islamic conquest brought Sharia law, and during the British Raj, Anglo-Hindu law was introduced. The current Indian constitution, the world's longest for a sovereign nation, came into force on 26 January 1950 and has been amended over 100 times. It establishes a federal court system with High Courts in each state and a Supreme Court at the top. The Supreme Court interprets the constitution and has made landmark rulings, such as banning the Islamic practice of Triple Talaq. Neelakanta Ramakrishna Madhava Menon, an Indian civil servant and lawyer, is considered the father of modern legal education in India and has contributed significantly to law reform.
| Characteristics | Values |
|---|---|
| Stages of evolution | Vedic period, Islamic period, British period, post-independence |
| Ancient India | Dharmaśāstras, Arthashastra, Manusmriti |
| Vedic period | Vyavahara, Purvapaksha, Uttar, Kriya, Nirnaya |
| Islamic period | Sharia law, Fatawa-e-Alamgiri |
| British period | Anglo-Hindu law, East India Company |
| Post-independence | Constitution of India, National Law Universities system |
| Authors and contributors | Neelakanta Ramakrishna Madhava Menon, Prem Behari Narain Raizada |
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What You'll Learn
The influence of ancient Indian legal theory and practice
Indian law has evolved through various stages, from ancient times to the Vedic, Islamic, British, and post-independence periods. Ancient India had a distinct and independent legal theory and practice, with the main aim of preserving "dharma", which encompasses righteousness, duty, and religious and legal obligations. This included a wide range of human activities such as rituals, hygiene, and dress codes.
During the Vedic period, legal procedures were called "vyavahara", with "purvapaksha" and "uttar" equivalent to the modern plaint and written statement, respectively. The trial and verdict were called "kriya" and "nirnaya", and there were no lawyers. Trial by jury and trial by ordeal were the two types of trials practised. The ancient Indian constitutional system established a duty-based society, where everyone, from the king to the lowest in society, had to fulfil their duty towards the community. This ensured that no absolute monarchies existed, as Dharma (law) was supreme even over kings.
In villages, civil and criminal cases were handled by village councils (Kulani), while in towns and districts, courts were presided over by government officers under the King's authority. Trade guilds had jurisdiction over their members, and family courts and puga assemblies decided civil disputes among family members. Minor criminal cases were handled by village judicial assemblies, while serious criminal cases were presented to the central court under the King. The appeal system existed, with the King as the highest body of appeal.
The sources of law during this period were Sruti, Smriti, and acharas (customs). Sruti consisted of the 4 Vedas, which dealt with religious duties and practices. Smriti, or "as remembered", refers to tradition and includes written texts like the Dharmashastras, which provided legal guidance and rules of conduct. The Dharmashastra contains rules on daily rituals, life-cycle rites, caste duties, and legal procedures.
Ancient Indian legal theory and practice had a significant influence on the development of law in India, with the Dharmaśāstras playing an important role. The Arthashastra (400 BC) and the Manusmriti (100 AD) were influential treatises considered authoritative legal guidance. This period also saw the emergence of similar fundamental institutions of international law, and clear-cut rules of warfare and neutrality in the pre-Islamic era.
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Islamic law in India
Islamic law, or Sharia, has a long history in India, dating back to the arrival of Islam in the 7th century through Arab traders. Over the centuries, various Muslim dynasties, including the Delhi Sultanate and the Mughal Empire, solidified the presence of Islam in the region. During the Mughal rule, religious scholars (ulemas) held considerable influence over legal decisions. However, this changed during the reign of Akbar, who reduced the power of the ulemas and challenged the dominance of the orthodox Sunni school.
The British colonial government played a significant role in codifying and standardising Muslim Personal Law (MPL) with the enactment of the Shariat Application Act of 1937. This act aimed to ensure that Muslims in India followed Islamic laws in matters of personal law, including marriage, divorce, inheritance, and family relations. It was designed to replace inconsistent customary practices with the Islamic principles outlined in the Quran and Hadith, providing a uniform framework for Muslims across the country.
After India gained independence from Britain, the Shariat Act (MPL) was maintained, and it became closely tied to Muslim identity and religion. The Indian Parliament also passed the Hindu Code Bills, which included the Hindu Marriage Act, Hindu Succession Act, Hindu Minority and Guardianship Act, and Hindu Adoptions and Maintenance Act. These bills applied to Hindus, as well as those practising Sikhism, Jainism, and Buddhism.
In recent times, there have been debates and legal challenges surrounding certain practices within Islamic law in India. One notable example is the practice of instant triple talaq (talaq-e-bidat), which was declared illegal and a cognisable offence under the Muslim Women (Protection of Rights on Marriage) Act, 2019. This act gave Muslim women greater rights and protection in marriage and divorce, allowing them to seek divorce in a court of law.
Islamic feminist groups, such as the Bharatiya Muslim Mahila Andolan (BMMA), have also been actively working to empower women within the context of Islamic law. They argue that Islamic law upholds women's rights and that flawed, patriarchal interpretations by religious scholars have led to injustices. The BMMA has set up its own Sharia councils, led by women, to offer more gender-just interpretations of Islamic law and advocate for reforms in Muslim family laws.
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British rule and the East India Company
The East India Company was an English company formed in 1600 by Queen Elizabeth I, who granted over 200 English merchants the right to trade in the East Indies. It was initially a monopolistic trading body, but it soon became involved in politics and acted as an agent of British imperialism in India from the early 1700s to the mid-1800s.
The company established its first trading post in Surat, India, in 1612, and gradually expanded its presence in the region. It fought a series of wars with the French East India Company, exploiting the chaos caused by the disintegration of the Mughal Empire. By the 1700s, the company had grown so large that it dominated the global textile trade and had amassed its own army of over 200,000 soldiers, which was twice the size of the standing British army.
The East India Company conquered vast tracts of land in South Asia and established direct or indirect rule over many regions. They also instituted several unified systems, including a judiciary and a postal service, and began the construction of India's vast railway network. The company also made significant profits by encouraging opium production in its Indian territories and smuggling it into China in exchange for tea, leading to the Opium War of 1840.
During the first half of the 1800s, the British, through the company, legislated reforms against what they considered iniquitous Indian practices. For example, the Hindu Widows' Remarriage Act of 1856 provided legal safeguards for remarrying Hindu widows regarding certain forms of inheritance. The spread of Christianity and access to education, particularly by missionaries, also significantly impacted the existing social order.
However, the company's rapid expansion and reforms caused increasing rebellion and insurgence from its Indian territories, culminating in the Indian Rebellion of 1857. After the rebellion was suppressed, the Government of India Act 1858 resulted in the company's territories in India being nationalised and administered by the British Crown, marking the beginning of the British Raj. The East India Company continued to exist for another 15 years before finally shutting down in 1874.
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The Constitution of India
The Indian Constitution was drawn from a number of sources, mainly the Government of India Act 1935, which was significantly drafted by Samuel Hoare. Its framers borrowed features of previous legislation such as the Government of India Act 1858, the Indian Councils Acts of 1861, 1892 and 1909, the Government of India Acts 1919 and 1935, and the Indian Independence Act 1947. The latter, which led to the creation of Pakistan, divided the Constituent Assembly in two. Each new assembly had the sovereign power to draft and enact a new constitution for their separate states.
The Constitution was drafted by the 389-member Constituent Assembly (reduced to 299 after the partition of India), which was elected by the members of the provincial assemblies. The Constituent Assembly took almost three years to draft the constitution, holding eleven sessions over a 165-day period. Sir B. N. Rau, a civil servant who became the first Indian judge at the International Court of Justice, was appointed as the assembly's constitutional advisor in 1946. Responsible for the constitution's general structure, Rau prepared its initial draft in February 1948. The draft consisted of 243 articles and 13 schedules which, after discussions, debates and amendments, became 395 articles and 8 schedules. Rau's draft was considered, debated and amended by the seven-member drafting committee, which was appointed on 29 August 1947 with B. R. Ambedkar as chair. A revised draft constitution was prepared by the committee and submitted to the assembly on 4 November 1947.
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The Indian legal education system
India has a long history of legal education, dating back to the Vedic ages and the Indus Valley civilisation. The country's legal system was significantly influenced by the British during the colonial era, and this has had a lasting impact on the structure of Indian law, which is based on English common law.
History of Legal Education in India
The concept of legal representatives emerged during the Mughal period, with the establishment of a court system and the emergence of legal experts known as "vakils". After the Mughal period, the Indian legal system shifted once again, and the newly created Supreme Courts were initially closed to Indian practitioners due to restrictions on the right of audience. This changed with the Legal Practitioners Act of 1846, which opened up the legal profession regardless of nationality or religion.
In 1857, legal education was introduced as a subject in three universities in Calcutta, Madras, and Bombay, marking the beginning of formal legal education in India. Initially, law classes were attached to arts colleges, and the courses were taught in English. The duration of the course was two years, and it followed a lecture-based teaching method.
Modern Legal Education in India
Today, legal education in India is regulated by the Bar Council of India (BCI), a statutory body established under the Advocates Act of 1961. The BCI is responsible for prescribing the minimum qualifications and curriculum for law degrees. To obtain a law degree in India, students traditionally pursued a three-year Bachelor of Laws (LL.B.) degree after completing an undergraduate course in any discipline. However, in recent years, specialised law universities have been established, offering integrated five-year law courses that combine a bachelor's degree with an LL.B., such as the B.A., LL.B. (Honours) degree.
Challenges and Innovations
The legal education system in India faces several challenges, including a lack of qualified faculty members who are both good teachers and active researchers. There is a need to encourage young lawyers to pursue academia and improve research infrastructure. Additionally, the curriculum has been criticised for its lack of relevance and effectiveness, prompting calls for new ideas, innovations, and a stronger focus on research and legal training.
To address these issues, law schools in India have made significant changes to their teaching methods, moving away from traditional lectures and incorporating more engaging and creative learning techniques. Moot courts, extracurricular activities, mandatory internships, and on-campus hiring have become integral parts of the legal education experience. Private universities have also played a role in driving these changes and raising the standard of legal instruction in India.
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Frequently asked questions
Indian law has evolved over time and has been influenced by various religious and philosophical texts, as well as different ruling empires. Ancient Indian law was based on the concept of "dharma", which encompasses both legal and religious duties. During the Islamic period, Sharia law was introduced and the Fatawa-e-Alamgiri was compiled in the 17th century. Under British rule, a common law system was established and various codes and acts were drafted by the Law Commission. Post-independence, the Indian Constitution became the supreme law of the land, guiding all executive, legislative and judicial matters. This constitution was written by the Constituent Assembly of India, chaired by Dr. B.R. Ambedkar, and came into force on 26 January 1950.
The different stages of evolution of Indian law include the Vedic period, the Islamic period, the British period, and post-independence. Each of these periods had a significant impact on the development of Indian law and its unique features.
The current legal system in India is based on the Indian Constitution, which is the supreme power of the nation. The Constitution guides all laws and establishes a federal structure with separate legislative and executive branches for each state, while sharing a judiciary with the Union government. The Constitution has been amended numerous times and continues to evolve to meet the needs of the country's growing democracy.
