LAW: JUDICIAL AiND LEGAL SYSTEMS OF INDIA

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JUDICIAL AND LEGAL SYSTEMS OF INDIA

India has been the home of four major legal traditions: Hindu, Muslim, Bridsh, and that of modern,
independent India. Although each of the latter three
legal systems was established in India as the result
of dramatic political change, none has ever totally
supplanted its predecessors. Important elements of
the earlier tradidons remained in each new system,
and ail of the earlier traditions are present in contemporary Indian law.
Dharmashastra. The autochthonous legal tradition of India is Hindu. The Sanskrit word perhaps
closest in meaning to the English term laiv is
dharma, which refers generally to right or proper
conduct, and thus covers such English concepts as
law, morality, duty, and obligation. A vast body of
Sanskrit texts dealing with these and other normadve topics, generally known as the Dharmashastras,
developed between 600 BCE and 500 CE. In these

411

texts, obligations and penalnes were differennated

according to caste and station in life.
Hindu law knew no hierarchy of legal agencies.
There were innumerable overlapping jurisdictions;
many groups enjoyed a degree of autonomy in administering law among themselves. Each caste had
its own tribunals, somedmes advised by brahmans,
and markets, villages, and guilds had councils to
decide disputes. These bodies decided cases according to caste or local custom as well as, or instead
of, rules derived from the dharmashastra.
The dharmashastra not only established different
rules for different kinds of persons, but it incorporated and cerdfied many bodies of rules not found
within its pages. Every aggregadon of people
castes, bodies of traders, guilds of artisans, families,
sects, villageswas entided to formulate and apply
its own customs and convennons. Custom was not
necessarily ancient and it was not unchangeable. It
might be minted for the occasion. The power of
groups to change custom and to create new obligatory usage was generally recognized. Where matters concerning such groups came before the royal
courts, they were to be decided in accordance with
the usage of the group.
Royal courts existed in capitals and in some larger
towns, where the king or his delegate decided cases
on the advice of brahman shastris, scholars of the
dharmashastra. Hindu rulers enjoyed in theory, and
sometimes exercised, a general power of supervision
over all the lesser tribunals. In theory, only the royal
courts could execute fines or corporal punishments,
but presumably the various lesser tribunals could
pronounce them and invoke the king's power of
enforcement. But while some adjudications might
have been enforced by governmental power, most
depended on expulsion and boycott as the ultimate
sancdons. Theorerically, at least, these decisions
could be appealed to the king, but available evidence
suggests that this occurred infrequently.
In spite of the general presage of the dharmashastra and its brahman exponents, and in spite of the
plenary power of the royal courts, neither dharmashastra nor the king's law displaced the many
bodies of local law; dharmashastra itself incorporated the widest tolerance of local taw. The fact that
dharmashastra was the only body of law that was
written, studied, and systematically culnvatedin
addinon to the presnge of its brahman expositors
and the patronage of royal authoritycaused widespread striving on the part of many groups to
broaden it to govern more groups on more legal
topics. But this was by absorpnon and acceptance.

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LAW: JUDICIAL AND LEGAL SYSTEMS OF INDIA

not by imposition. At the same rime that custom

was gradually aligned in some respects with the standards set by the dharmashastra, the textual law was
itself continuously reinterpreted to accommodate a
variety of usages. The relation between the "highest" and most authoritative parts of the legal system
to the "lower" components was more like the relation between leading American universities and
smaller colleges, or between haute couture and discount store fashions, than it was to the type of hierarchical relationship that is associated with a modem legal system. No central power could pronounce
binding law or unify the system.
Islamic Inuence. This diverse, decentralized system became even more complex with the conquest
of much of India by Muslim invaders, beginning in
the twelfth century. Muslim rulers had royal courts
in cities and administrative centers that exercised
general criminal (and sometimes commercial) jurisdiction and also decided civil and family matters
among the Muslim population. These courts operated according to Muslim lawat least in theory,
for the application of shari'a (Islamic law) was qualified by custom and royal decrees, by corruption and
lack of professionalism, and by arrangements allowing considerable discretion to the courts of first instance. While a hierarchy of courts and a right of
appeal existed, it seems that the activity of these
higher courts fell short of any sustained and systematic supervision of the lower courts. Hindus were
generally allowed their own tribunals in civil matters. Where such matters came before royal courts,
the Hindu law was applied. The government's courts
did not extend very deeply into the countryside;
there was no attempt to control the administration
of law in the villages. Presumably, the Hindu tribunals proceeded as before Muslim rule, except that
whatever ties had bound these tribunals tp governmental authority were weakened; there was no appeal to the royal courts. [See also Durbar.]
British Rule. A third legal tradition arrived with
the British in the seventeenth century. The East India
Company's charter gave it the power to discipline
its own servants, and a 1618 treaty with the Mughal
emperor recognized this power for the company's
factory at Surat. As new British settlements were
established, new company courts were created in
them. These courts were not the same in all locations, however. In 1726 the courts in the presidency
towns were made royal courts of uniform structure,
deriving their power directiy from the king and not
from the company, with appeal to the Privy Council
in London. Their jurisdiction was confined to cases

involving residents of the presidency towns or company factories. But uniformity proved elusive and
jurisdiaional restrictions proved difficult to maintain in the face of the appeal of these courts to Indian
litigants. [See East India Company.]
A new plan, put forth in Bengal in 1772 and later
adopted in Bombay and Madras, established in each
presidency a hierarchy of courts empowered to hear
civil cases between all residentsboth Indian and
Europeanof the presidency. In suits regarding inheritance, succession, marriage, caste, and religious
endowments, the courts were to apply the dharmashastra to the Hindus and the shari'a to Muslims.
The Brirish judges were assisted by brahman advisors in ascertaining and applying Hindu law, and
moulvis for Islamic law. Presidency-wide hierarchies
of criminal courts were established in the 1790s.
Thus, by the end of the eighteenth century British
courts had completely supplanted those of the Indian rulers throughout the territory of the presidencies. This process continued through the nineteenth
century, with new British courts being created as the
territory of Brirish India increased.
The law applied by the Brirish courts was derived
from many sources. Hindu and Muslim law continued to be applied in the "personal law" areas of
inheritance, caste, marriage, and religion. J-Iowever,
the British were not content to depend solely upon
Indian advisers for knowledge of Hindu and Muslim
law; they also translated many basic works on the
dharmashastra and shari'a. The Brirish judges relied
increasingly on such texts, as well as on precedent
from their own courts. Outside these areas, the British judges were empowered to decide according to
"justice, equity, and good conscience," a rubric under which most cases were decided according to
principles and rules of English law. [See also Jones,
Sir William.]
The anglicization of the law in India increased
after 1858, when the Brirish Crown replaced the
administrarion of the East India Company. During
the next quarter century a series of codes, based
more or less on English law and applicable throughout British India, were enacted. There was virtually
complete codificarion of all fields of commercial,
criminal, and procedural law. Separate "personal
laws" were srill applied to Hindus and Muslims, but
the connection between these laws and the original
traditions of the dharmashastra and the shari'a became transformed. After 1862 the courts no longer
employed Indian law advisers but instead decided
cases on the basis of precedent and the available
texts. The traditional methods of refining the doc-

LAW: JUDICIAL AND LEGAL SYSTEMS OF INDIA

trines of the dharmashastra through the writing of
commentaries, and the flexible application by the
shastris were displaced by the British system of
formal rule application and accumulation of precedent. The living process of Hindu law was abandoned;
in its place appeared a body of rules known as
"Hindu law."
As the law applied in British Indian courts became
increasingly anglicized, the traditional legal institutions were also largely displaced. The British
courts quickly attracted large numbers of cases.
Some indigenous judicial institutions, panicularly
caste councils, remained active, but in the course of
the late nineteenth and early twentieth centuries,
most of'these bodies became moribund. The British
viewed the flood of cases into their courts and the
concomitant decline of traditional judicial institurions with some concern, as they thought that indigenous forms of judicial administrarion would be
cheaper, more suited to Indian cases, and less prone
than British courts to manipularion and abuse by
lirigants. Nevertheless, all efforts to divert Indian
cases from the courts into other forums failed.
A large and influenrial legal profession developed
as the business and importance of the courts increased. The first judges and lawyers were English,
but as the nineteenth century progressed the bar
became predominatly Indian, and increasing numbers of Indians were appointed to the judiciary.
Lawyers became prominent in public life, and particularly in the movement for Indian independence
from Britain.
Postindependence. After independence in 1947,
the legal system changed again. The Constitution of
India, which came into effect in 1950, created a
unified, hierarchical judiciary, headed by a Supreme
Court. In effect, the constitution preserved most of
the court system created by the Brirish, but made
the Supreme Court rather dian the Privy Council
the highest court of appeal. Each state (with a few
exceptions, where two states share one court) has a
single judicial hierarchy with a High Court at its
apex. There are no lower central courts, although
specialized tribunals do exist to handle cases in such
areas as income tax or labor matters. English is still
the language used in most courts.
The caste and local tribunals have largely disappeared. Attempts to resurrect "traditional" justice,
in the form of informal village courts (rryaya panchayats) to handle minor disputes, have not been
successful. When they were created in the 1950s,
these panchayats attracted large numbers of cases,
but most of them have undergone a drop in case

413

filings, to the point of being moribund. It seems that

these nyaya ("new") panchayats offer neither the
community justice of the old panchayats nor the
independence and finality of the courts, and thus
have not been attractive to potential litigants. [See
also Panchayat.]
The adoption of die constitution introduced several entirely new elements into the Indian legal system. One was the basic idea of constitutionalism. In
a striking departure from the British idea of parliamentary supremacy, the Indian courts are empowered to strike down legislation and administrative
acts that violate provisions of the constitution. This
power of judicial review has not been completely
accepted by Indian politicians. There has been a
dialeaical process of Supreme Court assertions of
the review power, legislative enactments and constitutional amendments to limit that power, and further Supreme Court decisions preserving the power
despite the actions of Parliament.
The battles over the power of judicial review have
largely been fought over issues involving the Fundamental Rights, which are guaranteed citizens by
Part III of die constitution, roughly analogous to
the American Bill of Rights. The constitution provides that citizens may request writs enforcing these
Fundamental Rights directly from the Supreme
Court or from the high court of dieir state, without
first bringing the matter before a lower court. This
ready access to die higher judiciary has ensured that
Fundamental Rights issues are frequently raised, and
has led to the development of an elaborate constitutional jurisprudence.
In modern India, law is seen as a means for changing society. The Republic of India is a secular and
(since 1976) socialist state. The constitution calls
for state action to bring about a more equal and just
society. Parliament has enacted many laws aimed at
achieving that goal. Thus, Article 17 of the constitution abolishes "untouchability," and laws have
been enacted that impose penalties for restricting
the civil rights of die former Untouchables. Other
constitutional provisions empower the state to depart from formal equality to promote the interests
of the former Untouchables, members of tribal
groups, and other "backward" classes. Pursuant to
these provisions, govemment has erected programs
of "compensatory discrimination" involving reservation of such benefits as jobs and places in professional schools for members of these groups. Other
laws have been enacted to bring about equal treatment of women, the abolition of dowry, and the
emancipation of bonded laborers. The constitution

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LAW: LAW IN SOUTHEAST ASIA

establishes as a Directive Principle of State the policy

that the personal law systems applied separately to
Hindus and Muslims will be replaced by a uniform
civil code. Parliament passed a series of acts in 1955/
1956 known collectively as the Hindu Code, which
effects a wholesale and drastic reform of Hindu
Law. Where earlier legislation introduced specific
modifications into the framework of shastric law,
the code entirely supplants the dharmashastra as the
source of Hindu law. Muslim law has been less affected, though the ultimate goal of its replacement
remains official policy.
Overall, Indian legal development since the arrival
of the British displays increasing rationalization and
professionalizationa trend accentuated in independent India. The law is universal in coverage,
technically complex, administered by a sizable
group of trained professionals, and applied through
a unified hierarchy of agencies. Unlike the pre-British systems, it is designed to enforce local conformity
to national standards. Yet the price of complexity
and hierarchic unity is to make law remote from
populair understanding. The system of legal ideas
and institutions is now so complex as to supply
ample occasion for slippage and opportunity for manipulation, so that uniformity in doctrine and unity
in formal structure coexist with diverse practices
that diverge from the prescriptions of the formal law.
[See also Hindu Law and Shari'a.]
M. B. Ahmad, The Administration of Justice in Medieval India (1941). J. D. M. Derrett, Religion, Laiv and
the State in India (1968) and Essays in Classical and Modem Hindu Law, 4 vols. (1978). R. Dhavan, The Supreme
Court of India (1977). Marc Galanter, Competing Equalities (1984). M. P. Jain, An Outline of Indian Legal History (1966). P. V. Kane, History of Dharmasastra, 5 vols.
(1930-1962). R. Lingat, The Classical Law of India
(1973).
MARC GALANTER and ROBERT M . HAYDEN