Gavin Howe
India inherited the common law system from British colonisation, which was first developed in England and spread to other parts of the world through the expansion of the English empire. Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalised opinions and interpretations from judicial authorities and public juries, aiming to establish consistent outcomes by applying the same standards of interpretation. In India, as in other common law jurisdictions, the concept of precedents is widely applied, with judges referring to case law from other common law jurisdictions such as the UK, Australia, and Canada, in addition to domestic precedent.
| Characteristics | Values |
|---|---|
| Origin | England |
| Development | Developed by judges through court decisions |
| Application | Widely applied within the Indian legal system |
| Influence | Influenced by changing societal conditions and requirements |
| Principles | Derived from universal consent and practice of the people |
| Precedent | Judges are bound by the decisions of earlier judges |
| Evolution | Evolves with judges making law |
| Basis | Based on legal precedents, not statutes |
| Purpose | Promotes stability and consistency |
| Codification | Codified by Thomas Macaulay |
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What You'll Learn
The influence of British colonisation
The common law system in India is a result of British colonisation. The English common law system, which is a body of unwritten laws based on legal precedents established by the courts, was inherited by India during the period of British rule. This system of law travelled to India as a result of the expansion of the British Empire.
During British colonisation, the Privy Council, as the highest court of appeal, contributed to the formation of different court systems in India. The Indian Penal Code and the Code of Criminal Procedure were drafted, enacted, and brought into force under the first Law Commission. The Commission also drafted the Evidence Act and Contracts Act.
In the 1880s, Thomas Macaulay, a British lawyer, became the head of the All-India Legislative Council and the first head of the Law Commission. Macaulay believed that the British were responsible for providing the grounds for representative institutions in India, as they did not know "what good governance is". He aimed to codify Indian law and make it more aligned with British common law, which was derived from rulings in British legal cases.
Before colonisation, Indian law evolved from religious texts such as the Vedas and Upanishads, as well as Hindu philosophical schools. A civil law system may have also emerged during the Indus Valley civilisation.
Following colonisation, the influence of British common law on the Indian legal system continued. Indian tort law, for example, is generally derived from English law. However, there are certain differences, such as the inclusion of remedies for constitutional torts and a system of absolute liability for businesses engaged in hazardous activity. In Indian courts, judges have referred to case law from other common law jurisdictions, including the UK, when dealing with similar issues.
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The role of judges in creating common law
Common law systems rely on caselaw and legal precedent to guide their decisions, whereas civil law systems rely on codes and statutes. Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalised opinions and interpretations from judicial authorities and public juries. The judge presiding over a common law case determines which precedents apply to that particular case. The decisions made by higher courts are typically binding on lower courts in the same jurisdiction.
In common law systems, judges need only follow precedent when making decisions, which means court proceedings can be much shorter, saving time and money. Common law is also adaptable to the unforeseen, as it can address situations not originally predicted by lawmakers. It is flexible, as it can respond to changes in society and higher courts can overrule prior decisions without waiting for lawmakers to act.
In an adversarial system, such as those used in common law courts, judges generally decide the case presented to them, rather than acting as active investigators or reframing the issues presented. This is in contrast to civil law systems, which proceed under an inquisitorial system, where an examining magistrate plays an active role in developing the evidence and arguments for both sides during the investigation phase.
Judges in common law systems have the power to influence the criteria that a jury uses to interpret a case. They can present precedents which apply to a case and significantly shape future rulings until societal changes prompt a judicial body to overturn the precedent.
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The application of precedents in Indian courts
Article 141 of the Indian Constitution states that "the law declared by the Supreme Court shall be binding on all Courts within the territory of India". This means that the decisions and principles established by the Supreme Court must be followed by lower courts in similar cases. This ensures consistency and predictability in the law.
There are different types of precedents with varying levels of authority. Absolute authoritative precedents are binding on all courts, while persuasive precedents are not binding but may be considered and used as a guide. The hierarchy of the courts determines the level of authority of a precedent, with higher courts having more authority. The Supreme Court of India has been criticised for occasionally ignoring relevant precedents, and there have been instances of judges disassociating themselves from their earlier pronouncements.
The use of precedents in India is not limited to domestic cases. Indian courts have referred to case law from other common law jurisdictions such as the UK, Australia, and Canada. However, when applying foreign precedent, attention is given to local norms, conditions, and India's distinct constitutional framework.
In conclusion, the application of precedents in Indian courts is a key feature of the country's legal system, shaping the decisions made by judges and the interpretation of the law. This approach was inherited from the English legal system during the colonial era and continues to play a significant role in Indian jurisprudence today.
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The relationship between tort law and criminal law
Indian tort law is largely derived from English law, but there are some key differences. One unique feature of Indian tort law is the inclusion of remedies for constitutional torts, which address violations of rights, typically by state agents. This is an area of tort law that functions as a branch of administrative law, addressing unlawful administrative and legislative action.
Tort law and criminal law serve distinct purposes and provide different remedies. Tort law aims to hold a tortfeasor accountable and seeks to compensate individuals who have suffered harm due to the actions of others. On the other hand, criminal law seeks to punish and deter conduct that is deemed harmful to society, with penalties such as imprisonment, fines, or execution. The prosecution of a tort case by an aggrieved party does not prevent the state from also pursuing criminal charges for the same incident.
The standard of proof is another key distinction between the two areas of law. In India, as in most common law jurisdictions, the standard of proof in tort cases is the balance of probabilities, while criminal cases require proof beyond a reasonable doubt. This is similar to the preponderance of the evidence standard used in American tort litigation.
While tort law and criminal law have distinct purposes, there is some overlap between the two. Certain conduct that gives rise to a cause of action under tort law may also be criminalised. For example, in India, both slander and libel are criminal offences, so individuals found liable for defamation face not only damages under tort law but also potential imprisonment under criminal law. Additionally, certain torts, such as trespass, assault, and battery, can take on a criminal nature if committed with criminal intent.
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The evolution of common law in India
The common law system, a system of law based on recorded judicial precedents, was introduced to India during the colonial period when the country was under British rule. The British East India Company, which was granted a charter by King George I in 1726 to establish "Mayor's Courts" in Madras, Bombay and Calcutta (now Chennai, Mumbai and Kolkata), played a significant role in bringing common law to India.
During the 18th century, the East India Company sought to implement a more harmonious ruling system, moving away from solely relying on English Common Law. They established a set of laws and courts for both the interior and exterior governments. The exterior, known as the Presidencies, was governed by English law and staffed by English legal professionals, while the interior, the Mofussil, adhered to native laws, including Hindu and Muslim personal law, Company Regulations, and Islamic criminal law.
In the early 19th century, there were calls within the House of Commons for a "Select Committee" to examine the East India Company's objectives and operations in India. This was prompted by concerns about the company's effectiveness in administering justice and law-making, particularly regarding conflicting laws and religious laws that hindered unity. The East India Company's charter of 1833 brought about a significant shift in law-making in India, replacing regional legislatures with an all-India Legislative Council that held broad legislative powers.
The application of common law in India became more pronounced in the 19th century with the codification of certain laws and the establishment of proper courts under the charter of 1861. The Indian Penal Code, drafted under the leadership of Thomas Babington Macaulay, was enacted and came into force by 1862. Supreme courts were established, replacing the existing mayoral courts, and these courts were later converted into the first High Courts through the Indian High Courts Act of 1862.
Even after gaining independence from British rule, India's legal system retained and built upon the foundation laid by the British common law system. The Indian Contract Act of 1872, the Indian Partnership Act of 1932, the Sales of Goods Act of 1930, and the Indian Penal Code of 1862 are examples of laws enacted during British rule that continue to be moulded and amended to meet the evolving needs of Indian society. The Constitution of India also bears the influence of common law, with similarities between its articles and those of the Government of India Act of 1935.
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Frequently asked questions
Common law principles are used in Indian cases because India inherited the common law system from British colonisation.
Common law is a body of unwritten laws based on legal precedents established by the courts.
Common law draws from institutionalised opinions and interpretations from judicial authorities and public juries. It relies on detailed records of similar situations and statutes because there is no official legal code that can be applied to a case.
Civil law is a comprehensive, codified set of legal statutes created by legislators. A civil system clearly defines the cases that can be brought to court, the procedures for handling claims, and the punishment for an offence. Common law, on the other hand, is more flexible and subject to change as its principles are influenced by the changing conditions and requirements of society.
Indian tort law is generally derived from English law, but there are some differences. Indian tort law includes remedies for constitutional torts, which are actions by the government that infringe upon rights enshrined in the Constitution. Courts in India have also referred to case law from other common law jurisdictions, such as the UK, Australia, and Canada, in addition to domestic precedent.
