The Indian civilisation, among the oldest in the world, has a rich history of oral traditions based on mythological epics Ramayan and Mahabharat which date back thousands of years. There are also scriptures like Vedas and Upnishads which encompass all knowledge known to mankind then. Other than these, there were specific norms or laws of social behaviour which were enshrined in Manusmriti.
Also known as the Laws of Manu, Manusmriti is divided into 12 chapters which relate to different aspects of life and personalities. There are different chapters for rajdharma, a king’s duty relating to administration of justice; duties of a husband, wife and so on.
Religion and law
This has been the ancient Indian legal system which depended on brahmins or pandits for implementation. Purohits instructed kings on matters of governance. When other civilizations developed, their religious heads assumed the role of setting laws. Thus, in Christianity it was the Church which created the AngoSaxon jurisprudence and in Islam it was the Maulvi who created the Shariyat to disperse justice.
In pre-British era, India had two laws and legal systems. One, as per Manusmriti, implemented through the King’s court on the advice of the high priest. Second, Shariyat law which was implemented predominantly by the Maulvis and was applicable to the Muslim population. The two systems were quite distinct and divergent. Rights and obligations of individuals thereunder, were quite different and varied.
Enter the Brits
Now came the British, who entered India through East India Company, as purely a trading organisation, to exploit the riches and the wealth of India. Trading activity increased and the British started travelling in the interiors. They found it quite challenging to understand the diverse Indian system initially. They studied the system in detail and started taking full advantage of the conflicts within the diverse systems.
Slowly, they started offering the Indian rulers the bait of more revenue in exchange for the right to administer their areas. Once they had expanded their jurisdiction, they started bringing uniformity of land laws (tenancy laws), and started making settlements (1793 – Permanent Settlement in Bengal, as it then was).
Things got out of hand when Indians tried to unite and fight for their independence in 1857. At this stage, the British Crown stepped in. The British Parliament nationalised the East India Company and consequent to various political moves, the British Crown established its territories in India.
The Crown
With the advent of the Crown, came the necessity of a uniform legal system in the vast territories of India, which so far had diverse practices, and that is when, slowly and steadily, the un-written British Anglosaxon common law, started to be applied to India.
The ancient India legal system of Manusmriti and Shariyat were completely discarded and the common principles of Anglo-Saxon law were brought in and enforced. The three Presidency courts, Bombay, Calcutta, and Madras were set up, with other courts in line with it, for applying the British common law and Anglo-Saxon jurisprudence in India.
Legislations were made to suit Indian conditions, but were primarily based on British common law principles developed by English courts over a period of time. New relationships and rights were developed such as Contract Act, Sale of Goods Act, Transfer of Property Act, and the law of Evidence. The great Indian legal system, which was much older than the Anglo-Saxon system, stood discarded for the benefit of the Crown.
Independence and law
It is in this backdrop that India got Independence and declared itself Republic with its own Constitution, enforced on January 26, 1950. During debates in the Constituent Assembly, various aspects were deliberated upon, including the necessity to continue the laws till appropriate changes were made through new legislations.
The Constitution, as ultimately adopted, has, inter alia, two provisions, which recognise the continuance of common law principles and their applicabilities. These are to be found in Articles 367 and 372 of the Constitution. Thus seen, substantial common law principles of British era continued to apply with little modifications even after India’s Independence.
Ancient laws forgotten
Unfortunately, ancient Indian laws have been forgotten, which were very comprehensive in various fields. Since they could not be understood and implemented uniformly by the British Crown in the occupied territories of India, they were totally forgotten.
It is for anyone to read two monumental books on legal and constitutional history of India and ancient Indian law, both by Justice M Rama Jois. These two books show the depth of our jurisprudence, the complex situations it contemplated and resolved centuries before Anglo-Saxon jurisprudence came into being.
