Broadly Speaking: Legal system evolution in India

INTRODUCTION:

India has the oldest judiciary in the world. No other judicial system has a more ancient or exalted pedigree. India’s first major civilization flourished around 2500 BC in the Indus river valley. This civilization, which continued for 1000 years and is known as Harappan culture, appears to have been the culmination of thousands of years of settlement. The roots of the present-day human institutions lie deeply buried in the past. This is also true about the country’s law and legal system. The modern judicial system in India started to take shape with the control of the British in India during the 17th century. The British Empire continued until 1947, and the present judicial system in India owes much to the judicial system developed during the time of the British[2].

JUDICIAL ADMINISTRATION IN ANCIENT INDIA

Law in ancient India meant “Dharma” in the broader sense. The Vedas, regarded as divine revelation, was the supreme source of authority for all codes which contained what was then understood as law or dharma. The traditional records have governed and molded the life and evolution of the Hindu community from age to age. These are supposed to have their source in the Rigveda. Justice was administered in ancient India according to the rules of civil and criminal law as provided in the Manusmriti. There was a regular system of local courts from which an appeal lay to the superior court at the capital, and from there to the King in his own court. The King’s Court was composed of himself, a number of judges, and his domestic chaplain who directed his conscience; but they only advised and the decision rested with the King. Arbitrators in three gradations existed below the local courts: first of kinsmen, secondly of men of the same trade, and thirdly, of townsmen. An appeal lay from the first to the second, from the second to the third, and from the third to the local court. Thus under this system, there were no less than five appeals. The decision by arbitration, generally of five (Panches), was very common when other means of obtaining justice were not available. The village headman was the judge and magistrate of the village community and also collected and transmitted the Government revenue[3].

JUDICIAL SYSTEM IN MEDIEVAL INDIA

After the disintegration of the Harsha Empire, a veil of obscurity descends on the history of India which does not lift till the Muslim invasion. The country was divided once more into small kingdoms. But this did not result in any great change in the judicial system which had taken roots during the preceding thousands of years[4]. The standards and ideals of justice were maintained in each kingdom, in spite of political divisions, the unity of civilization was preserved, and the fundamental principles of law and procedure were applied throughout the country. But the establishment of the Muslim rule in India opened a new chapter in our judicial history. The Muslim conquerors brought with them a new religion, a new civilization, and a new social system. The Mughal judicial system has left its imprint on the present system, and a good part of our legal terminology is borrowed from it. Our civil courts of the first instance and called Munsifs, the plaintiff and the defendant are termed Muddai and Muddaliya, and scores of other legal terms remind us of the great days of the Mughal Empire[5].

THE JUDICIAL SYSTEM TODAY

High Courts

At the apex of the State Judiciary is the High Court. It is a court of record and not subject to the superintendence of any court or authority, though appeals from its decision may lie to the Supreme Court. It consists of a Chief Justice and as many judges as the President of India may sanction[6].

Independence of Judges

The principle of judicial independence did not originate with British rule. As I have shown above, it was fully understood and enforced in ancient India. Katyayana and all other law-givers (whose injunctions have been quoted above) emphasized the Supreme importance of judges being independent and fearless even of the king. The Constitution of India adopted the English doctrine of the security of tenure, and a High court or supreme court Judge can be removed only on the ground of proved misbehavior or incapacity, and after each House of Parliament has passed by a two-third majority an address to the President for his removal (Articles 124 and 217). The Supreme Court and National Integration The Constitution of 1950 created for the first time in Indian history a Supreme Court for the whole of India. The establishment of this Court with an all-India jurisdiction is likely to accelerate the development of a common-law extending over every nook and corner of the republic. Article 141 enjoins "that the law declared by the Supreme Court shall be binding on all Courts in India." It gives the opinions of our Supreme Court a constitutional force. The judicial process can be an effective weapon for forging national integration. In England, the Law Courts were the most effective weapon for creating a common law for the English people. There can be no doubt that the Supreme Court by its decisions and opinions, with the authority of Article 141 behind them, shall accelerate the process of establishing a common law for the whole of India[7].

The Supreme Court and National Integration

The Constitution of 1950 created for the first time in Indian history a Supreme Court for the whole of India. The establishment of this Court with an all-India jurisdiction is likely to accelerate the development of a common-law extending over every nook and corner of the republic. Article 141 enjoins "that the law declared by the Supreme Court shall be binding on all Courts in India." It gives the opinions of our Supreme Court a constitutional force. The judicial process can be an effective weapon for forging national integration. In England, the Law Courts were the most effective weapon for creating a common law for the English people. There can be no doubt that the Supreme Court by its decisions and opinions, with the authority of Article 141 behind them, shall accelerate the process of establishing a common law for the whole of India[8].

INDIAN CONSTITUTION, A SYNTHESIS:

The Indian Constitution has set before our people a very ambitious and difficult goal. A Constitution is not a collection of abstract theories, nor does it operate in a vacuum. It reflects a way of life that enables a particular person to realize its objectives and ambitions. If it fails to do this, it will be amended or discarded by agreement or otherwise. The Compulsive forces of social life are irresistible in the end[9].

This article is authored by Tanzim Surani, a 4th-year student pursuing a 5-year law course [BA LLB (Hons.)] at the GLS Law College, Gujarat University.

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[1] History of the Constitution of the Courts and Legislative Authorities in India, by Cowell (1872), p.3., Also available on URL, http://www.allahabadhighcourt.in/event/TheIndianJudicialSystem_SSDhavan.pdf, last accessed on, 09/07/2020

[2] https://www.nyulawglobal.org/globalex/India_Legal_Research.html

[3] Ibid.

[4] The administration of Justice in Medieval India, by M.B. Amhad, p. 272, quoting Briggs. Rise of the Muhammendan Power in India, Volume I, p.272.

[5] https://www.gktoday.in/gk/history-of-indian-judiciary/, last accessed on, 11/07/2020

[6] https://www.lawyersclubindia.com/articles/Evolution-of-Law-A-short-History-of-Indian-Legal-Theory--3739.asp, last accessed on, 10/07/2020

[7] https://www.britannica.com/topic/Indian-law, last accessed on, 11/07/2020

[8] Ibid.

[9] Ibid.