INTRODUCTION

The Indian legal system as we know it to be today is not something that was developed with a fixed plan and goal by certain people but is a collective product of the various systems and subsequent changes over a period of time. The time period that was evidently most prominent with respect to changes in the Indian legal system was during the British-ruled colonial India. Law in India has evolved through processes of change since times of religious instruction to the present constitutional and legal system, with the much-needed inclusion of secular legal systems and the common law. The manner in which the legal system has ‘developed’, or just changed for that matter, is owed to the British ruling of the nation, and consequently the colonial system which allowed for such processes to take place.

The different stages of evolution of the judicial system in India is categorized as that during the Vedic, Islamic, British period and post-independence. Though the order of events is such, it is widely known how drastically and prominently the British rule has changed the face of the legal system in India in the years afterwards. The present-day legal system in India began to take shape by various ‘modifications’, with the control of the British in India during the 18th century. The British Empire continued until 1947, creating a system that would be similar to the British system and relevant to the outside world which, in that sense, can be considered as an advantage and as development. The very nature of the Indian Law today is similar to western system and evidently influenced, directly or indirectly, by the Western system. Indian law, through its processes of change and modification over the course of time, has reached a stage where the system can be considered to be a well-established, ideally proper and organized procedural structure. Such a system in place today can be said to signify the collective result of the efforts, risk, experience, careful and necessary planning and persistent labor of many people all the way through different generations.

Through this project, I will attempt to research the aspects of Indian Law during the British-ruled India, and how such changes during that time period has affected the course of the legal system in India throughout the years that followed as well. I have chosen a relatively broader and somewhat vast topic to research, not to get a deeper understanding of every aspect within, but an overall understanding of the situations and changes that led to the creation of the judicial system of the nation we study today. I will also attempt to comprehend and answer the question of whether such changes can be called as ‘developments’ and whether the term ‘modernity’ does justice in this context. It will be pondered upon whether India would have taken a similar course of action in developing its legal system, had situations been different with regard to the British ruling the nation; if the British had not changed the legal system, or if they had not ruled India in the first place, how would the legal system have been today?

INDIAN LEGAL SYSTEM: A GLIMPSE INTO ITS PAST (PRE-COLONIAL INDIA)

Before the colonial state of India ruled by the British, the nation’s legal system had very ancient and unique methodology and ideology that was widely known among the people. For several millennia, India’s social and religious structures have endured conditions and inevitable social phenomena such as famines, religious pursuits, political mayhems and many other catastrophes. Countries other than India do not usually have national identities of old, lengthy and vibrant history. Pre-colonial India was regarded as having a diverse but fragmented cultural, religious as well as political structure, wherein there lacked a certain monolithic Hindu, Christian or Muslim authorities. Many castes, tribes, cults, and family groupings tended to defy religious lines and political lines, resulting in a heterogeneous population that could possibly possess a fixed concept and belief of authority but what was absent was a necessary notion of legality. Most of the law at that point of time existed as customary, and adjudication mainly within segregated communities, which unfortunately led to a common assumption and conclusion by outsiders that pre-colonial India as a nation lacked law overall.

Before the period of colonial India, Vedic ages and a civil law system were in place, approximately during the period of Bronze Age and Indus Valley civilization. The first major civilization in India that thrived around 2500 BC in the Indus River valley continued for a millennium, and is known as Harappan culture. It is estimated to have been the collective result of thousands of years of settlement. Law as a matter of religious instructions and philosophical discourse has an eminent history in India. With sources such as the Upanishads, Vedas, and other religious texts, the system was enriched by practitioners from different Hindu philosophical schools and later by Jains and Buddhists.

Law in ancient India related to “Dharma” in the broader sense. The Vedas, which were regarded as divine revelation, were known as the supreme authoritative source for all the codes which consisted of what was then understood as law; ‘Dharma’. Traditional records had governed and effectively molded the life and evolution of the Hindu community over centuries. These records supposedly have their originating source in the holy Rigveda. Ancient India represents a unique, distinct tradition of law, which possessed a traditionally independent school of legal theory and practice, origins or sources of which during this era consist of ‘Smriti, Sruti and acharas i.e. customs’. The main intention of the law in the Vedic period was to preserve and follow "dharma" which means righteousness and duty, comprising of both legal duties and religious duties. It not only consists of laws and court procedures, but also entails a wide range of human activities, including ritual purification, personal hygiene rules, and ways of dressing. ‘Dharma’ provided the Hindu community with the necessary principal guidance by which one would ideally lead his life. Justice in ancient India was overseen according to the guidelines of civil and criminal law described in the Manusmriti. Notable features of the Vedic judiciary system include the highest court being King’s court, advised by learned people like ‘Learned Brahmins, ministers, the Chief Justice etc.., followed by court of Chief Justice, Naman was considered the fountain of justice that has to act as the lord of Dharma with responsibilities, absence of lawyers, two or more judges in a bench was always preferred as ideal to administer justice rather than a single individual judge taking responsibility as sole administrator of justice.

Secular law in India varied significantly in different regions and under different rulers. Court systems specifically for civil and criminal matters were the necessary features of most of the ruling dynasties of ancient India. Excellent secular court systems existed under the Mauryas from 321 BCE to 185 BCE and the Mughals from the 16th century to 19th century, giving way for emergence of the current common law system .

INDIAN LEGAL SYSTEM: DURING THE BRITISH RULE (COLONIAL INDIA)

The British colonial state in India was continuously forced to deal with the forms of law and governance suitable for Indian society. This problem of the necessary, likely, and desirable relationship between colonial law and Indian social life produced an excess of policies and hence problems with confusion. It also created a new political significance for certain issues determined as social, mainly religion, women, family, property, economic production and exchange. This later subsequently created scope and models for the modern-day law that we see in India today.

Institutionally, since the initial stages of British trade and residence in the Indian ports around the seventeenth century until the 1860s, disputes in areas of British residence, which were later conquered, were adjudicated by a dual system of courts.

The ideology and methodology of the British government that emerged and resulted in the colonial state defined and engaged with aspects of Indian social life, particularly related to religion, women, family, and to property and economic production and exchange during the long century between the 1810s and the 1940s made the most impact in the legal system. The correlation between nineteenth-century England and colonial India was intricate in terms of assigning the different constituencies that had an interest in the economic and moral development of the colonies. In 1858, when India came under the control of the English Monarchy, its future had become ineradicably linked with that of England. Regardless, India's own unique history and culture made it inevitable that most of the reforms that the colonialists planned to undertake worked out differently than what they had predicted.

The British rule in India introduced and developed the Common Law legal system, which is now the basis for the present Indian judicial framework. In the early eighteenth century, in 1726, the Crown, King George I, through a series of Charters, introduced a judicial system that functioned under their authority in the three presidency towns; Bombay, Madras and Calcutta, i.e. the largest, most important towns in India under the British rule. The courts were termed ‘Admiralty Courts’ or ‘Mayor’s Courts’ in Bombay and Madras, and ‘Collector’s Court’ in Calcutta. The Judicial functions of the company increased significantly after its victory in the Battle of Plassey. By the year 1772, the company’s courts expanded to outside these three major cities during the process of which, it gradually replaced the existing Mughal legal system. These judicial systems were framed independently by the Governor and the Council of the towns, which had the authority to decide both civil matters and criminal matters. Yet, the towns functioned independently, in addition there was a lack of consistency and understanding due to dissimilarities in its functioning. Moreover, the court’s authority was not derived directly from the Crown but instead derived it from the East India Company. This also added to ironically making the system ‘unsystematic’.

After 1857, following the First War of Independence, the control over the company territories in India passed on to the British Crown. Being a part of the empire created way for the next significant change in the Indian legal system. The establishment of Supreme Courts would replace the existing ‘Mayoral Courts’. These courts after being replaced, were converted to the first High Courts after the process of letters of patents which were authorized by the Indian High Courts Act of 1862 passed by the British parliament. This restructured the then-prevalent judicial system in the nation by abolishing the Supreme Courts at Fort William, Bombay, and Madras, along with the then-existing Sadar Adalats of the Presidency Towns. The High Courts were established with ‘civil, criminal, admiralty, vice-admiralty, testimony, intestate, and matrimonial jurisdiction, as well as original and appellate jurisdiction.’

The Privy Council acted as the highest court of appeal during the Raj. Law lords of the House of Lords adjudicated the cases before the council. The state’s proceedings were such so that it sued and was sued in the name of the ‘British sovereign in her capacity as Empress of India.’ The Privy Council played a role that had a great unifying power and acted as the instrument and epitome of the rule of law. Privy Council’s Judicial Committee was provided a ‘Statutory Permanent Committee’ of legal experts in 1833 that would hear appeals from the British Colonies by an Act passed by the British Parliament. The Act of 1833 hence converted the Privy Council into a great imperial court of authority that was ‘unimpeachable’.

During the change from the Mughal legal system, “vakils”, which were the advocates under the system, also followed suit, although they mainly continued their earlier role of representing clients. The new opportunities presented by Supreme Courts were barred to Indian practitioners as the right of audience was ‘limited to members of English, Irish and professional Scottish bodies.’ Subsequent rules and statutes included in the ‘Legal Practitioners Act of 1846’ allowed for the profession irrespective of nationality or religion.

The colonial state thus suggested itself as a ‘secular agency’, and yet it used religious values and governed through religious norms in different ways. For a few scholars, this poses the possibility of the non-secular character of the state, and consequently several have critiqued or criticized the modernization as secularization planned in the colonial model.

Coding of law also began properly with the formation of the first Law Commission. Codification of laws made them uniform throughout the nation and adopted some ‘legal unity’ in the fundamental laws, as they apply uniformly throughout the nation. Under the stewardship of its chairman, Thomas Babington Macaulay, the Indian Penal Code was drafted, enacted and brought into force by 1862. This model piece of legislation was reproduced in many of the other British colonies and even today, forms a significant portion of the laws of countries like Singapore, Malaysia, and Sri Lanka. To cope with and address the constantly changing needs of society, these legislations underwent many amendments. This code is the fundamental administering statute for the determination of criminal risk for offenses mentioned in it, and to furthermore declare exemptions to the inquiries of criminal liabilities for offenses covered under special or local laws. This legislation has been used over decades and has been amended very few times. The Code of Criminal Procedure was also written by the same commission. Host of other statutes and codes like Contract Act 1872 and Evidence Act 1872, the latter of which is based on the work of Sir James Fitzjames Stephen, was a historical measure that joined the rules of evidence which were previously based on the traditional legal systems of an excess of social groups existing in India. These also differed, at times, subject to a person’s religious faith and/or social standing. This differentiation was eradicated and the judicial system had a wide-ranging guide for admissibility of evidence in courts, which included subordinate courts, high courts as well as the Supreme Court. The main essence of such a system of coding was to protect fundamental laws that had been recognized by the existing Constitution and it sought to maintain the same even when given a federal structure. Although, to some extent, local variations are permitted to be made by ‘States’, which are the provincial units of India, the vital unity of the nation in the matter of basic laws is preserved, including ‘penal and criminal procedure laws, marriage and divorce, wills, adoption, intestacy, succession, insolvency, civil procedure, evidence, etc..’

India is filled with diverse religions, with each having its own personal laws that govern marriage, adoption, and succession. The British managed to maintain a policy of non-interference with custom and personal laws, and it was hence decided that Hindus were to be governed by Hindu Law and Muslims, by Muslim laws. The British administration attempted to provide a framework for these laws also, by enacting detailed legislations governing various religions. A few examples are the ‘Indian Christian Marriage Act, of 1872, the Parsi Marriage and Divorce Act, of 1936, the Dissolution of Muslim Marriage Act, of 1939, Hindu Marriage Act, of 1955’. The term ‘Hindu’ had been viewed flexibly to include Sikhs, Jains and Buddhists. The development of personal laws is largely influenced by the customs and manners of communities. As these customs change with time and the development of society, the legislation has been amended from time to time. Many ancient practices have been recognized, while others done away with, in line with public policy and societal moral values. The legislations contain mechanisms for the protection of divorced spouses, education for minor children, maintenance etc. In respect of Muslim Law, marriages are legalized by the process enshrined in the 3 dictates of Mohammedan Law. However, no specific law exists for adoption for Muslims, Christians and Parsis, and they are covered by the general law governing guardians and wards.

The British wanted to bring Western enlightenment to the native Indian family by abolishing child marriages, sati, and the prohibition of the remarriage of widows, purdah, and similar patriarchal customs that oppressed women.

Abortion reform in England and also India occurred in the late 1960s and early 1970s, but because of the dissimilarities in social context between the two nations, the comparison of the reforms is notable. In England, abortion had been regulated heavily and restricted within and because of a predominantly Christian ideology that stressed upon the sanctity of life and the belief that life begins at conception. In India, social battles between pro-abortion and anti-abortion advocates had never reached the intense level as found in England and America. Because of this, when India faced weighty population pressures, the decision to legalize abortions was practically unopposed. In India, the abortion debate did not bother to consider or weigh women's rights against fetal protections but instead presented abortion as social policy and population control. In India, though these population pressures created a favorable environment for loosening abortion restrictions, the Indian Parliament adopted the same law which was adopted four years earlier in England. It is not surprising that the law had proven to be unable to deal with the unusual situation in India of an embedded patriarchy that favoured male over female children. As an expected consequence, the liberal abortion policies had resulted in the unfortunate widespread female feticide. Without any perception of abortion as a component of women's autonomy and control over one’s own reproductive functions, abortion in India has become an instrument that reproduces colonialism and patriarchy. Before the twentieth century, abortions in England were largely regulated through laws on murder and infanticide, especially if and when the mother had expired as a result of the procedure. During and after a highly publicized case involving the rape of a 14-year-old girl in 1938, therapeutic abortions were accepted, for cases threatening the life of the mother, as well as her mental health. The medical profession soon became the guardians for the determination of the indications for medical abortion, and they caused the slow erosion of legal restrictions by finding that a number of physical and mental effects were genuine medical grounds to perform an abortion. Abortion in India had not been regulated during the pre-colonial period. But in the nineteenth century, induced abortion became illegal in India, unless "medically indicated to save the life of a pregnant woman," as governed by the Indian Penal Code and the Code for Criminal Procedure. Persons who performed the miscarriage with the intent to terminate the pregnancy and without a view to save the life of the pregnant woman were liable for punishment, including the mother herself. However, as in England, illegal abortions were largely conducted, having an adverse effect on maternal mortality.

The ironic solution to the problem of ‘sati, the child-widow, illegitimacy, and infanticide’ was to enforce the English law of aristocratic inheritance onto the Indian families, although most aristocratic English families had been renegotiating for centuries the effects of the common law of inheritance through strict settlements, trusts, and other devices. Colonial authorities, native elites, and British feminists were involved in a struggle over the power to outline an authentic Indian tradition and culture as well as the proper parameters of gender within both England and India. The Contagious Diseases Acts, age of consent laws, widow reversion, sati, and abortion, to name a few, are just some of the goals of law reform that pitted these groups against each other in the struggle while attempting to define the suitable contours of the private sphere. As the British spent much time talking about their civilizing mission, they did very little in the end, and usually what they did accomplish was to undo some of the structures and expectations that were imposed on the Indian family in the first place by them. It is notable that while the British attempted to right the wrongs of Indian women, they remained a group that never consulted and never viewed as able to construct its own identity.

With the establishment of the Government of India Act, of 1935, provincial autonomy was established, which introduced responsibility at the provincial level, seeking a federation of the Union of British Indian Provinces with the rulers of Estate. As a federal system is dependent largely upon the just and competent administration of law between governments themselves, the Act allowed for the Federal Court to be established, as a forerunner of the Supreme Court of India. As the second highest court in the judicial hierarchy in India, the Federal Court was the first Constitutional Court and the first all-India Court of extensive jurisdiction, having Original Jurisdiction in matters where the dispute was present between the provinces or federal states. It was also the Appellate Court for the judgments, decrees, or final orders of the High Courts. The Federal Court of India had original, appellate and advisory jurisdiction. The doctrine of precedent in India also had its origins in the Federal Court as the law declared by the Federal Court and Privy Council has been given binding effect on all the courts in British India.

INDIAN LEGAL SYSTEM: POST INDEPENDENCE (NON-COLONIAL INDIA)

At the beginning of independence in India, the parliament of a new India was the hearth where a document that would guide the young nation was being made. It would eventually end up on the keen legal mind of B. R. Ambedkar to articulate a constitution for the independent nation. The Indian Bar had a significant role in the Independence movement; the most prominent leaders of the movement were lawyers is a statement in itself. The fresh nation found its first leader in Jawaharlal Nehru, and a paternal figure in M. K. Gandhi, both being exemplary lawyers. Maybe it is the resultant understanding of law and its relation to society that stimulated the founding fathers to devote themselves to form a Constitution of unparalleled magnitude in both scope and length.

The Indian Constitution is essentially federal in form and what is noticeable is the traditional characteristics of a federal system, specifically Supremacy of the Constitution, division of power between the Union and State, and the existence of an independent judiciary in the Indian Constitution. The three organs of the State; State, Legislature and Judiciary are to function within their own spheres defined under the Constitution. The doctrine of Separation of Powers has ideally been implicitly recognized by the Indian Constitution. The basic structure of the Constitution is unchangeable and only amendments to the Constitution are permitted, as long as they do not affect the basic structure or deprive it of its essential character. The Constitution of India recognizes certain basic fundamental rights for every citizen of India, such as the Right to Equality, the Right to Freedom, the Right against exploitation, and the Right to Freedom of Religion, Cultural and Educational rights, and the Right to Constitutional Remedies. Any infringement of fundamental rights can be challenged by any citizen of India in the court of law. The Constitution of India also sets some fundamental duties on every citizen in India. The Constitution clearly and through judicial interpretation, strives to empower the weaker members of the society.

The various implementations that were put in place as a result of the British rule have led to effect the nation, especially post-independence. The abortion reforms, for example, show just how greatly the colonial state has influenced post-colonial India and the difficulties inherent once again using women's bodies to negotiate political ends. Abortion reform in England that was mainly based on rights, is not without controversy. Yet, the reform in India, which was socialist and nationalist at heart, lead to denial of women's autonomy and women's interests being integrated in the greater goal of an idea of a modern India that somehow retains its traditional character.

India has an organic law as result of the common law system. Through judicial pronouncements and legislative action, this has been adjusted for Indian conditions. The shift of Indian legal system towards a social justice paradigm, though undertaken independently, can be understood to reflect the changes in other territories with common law system.

From a pretense of the colonial masters, the Indian legal system has progressed as an essential element of the world’s largest democracy and a serious front in the fight to secure constitutional rights for every citizen.

CONCLUSION

It is clearly evident how drastically and prominently the British rule has changed the face of legal system in India in the years afterwards. It created a system that would be more relevant with the British system and outside world, which can be seen as a development.

Even today, most of the judges and Indian lawmakers are trained in England, within a legal model that lacks the flexibility required to address the ‘pluralist traditions of modern India’ nor with the ‘colonial legacy’ that remains rooted in the Indian state and mindset. Because they are dependent on narrow definitions of legal principles and procedures, gathered from their ultimately secular past, their constricted interpretations of evidence and civil procedure lead to disparity in treatment for different women ‘victimized by Indian men, Indian culture, and a hegemonic legal system that fails to recognize their rights.’ Whatever rights do exist within the secular Indian state are not largely exercised by Indian women due to the religious and cultural norms that were historically constructed and imposed.

Such an example brings into question the doubt of whether the nation would have even adopted such a system with proper courts, procedures, codes, etc. without external interference. Whether the system present before British rule would have still be in place? If so, how successful would it be, considering the situation present in the world today?

I believe that with the interconnecting world today, a possibility would have been that India would have eventually brought in a system that meets the requirements of other countries, as well as the Indian beliefs and ideology. Without such a system, law in India would have been impractical and at the least, difficult to proceed with.

The question of whether such changes can be called as ‘developments’ and whether the term modernity does justice in this context is something that I found to be subjective and cannot be answered. Development and modernity are terms that are hard to define without perspective playing a relevant role. If we are talking in terms of change, modern/western rights and beliefs, and relevance to the outside world, perhaps yes. But in the mindsets of many Indian citizens and with respect to the origins and roots of the nation, it may not have been so.

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26. Varsha Chitnis & Danaya Wright, The Legacy of Colonialism: Law and Women's Rights in India, 64 Wash. & Lee L. Rev. 1315 (2007), available at http://scholarship.law.ufl.edu/facultypub/174
27. Varsha Chitnis & Danaya Wright, The Legacy of Colonialism: Law and Women's Rights in India, 64 Wash. & Lee L. Rev. 1315 (2007), available at http://scholarship.law.ufl.edu/facultypub/174
28. Varsha Chitnis & Danaya Wright, The Legacy of Colonialism: Law and Women's Rights in India, 64 Wash. & Lee L. Rev. 1315 (2007), available at http://scholarship.law.ufl.edu/facultypub/174
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31. Varsha Chitnis & Danaya Wright, The Legacy of Colonialism: Law and Women's Rights in India, 64 Wash. & Lee L. Rev. 1315 (2007), available at http://scholarship.law.ufl.edu/facultypub/174.
32. Varsha Chitnis & Danaya Wright, The Legacy of Colonialism: Law and Women's Rights in India, 64 Wash. & Lee L. Rev. 1315 (2007), available at http://scholarship.law.ufl.edu/facultypub/174