DOWNLOAD PDF STUDIES IN INDIAN LEGAL HISTORY AND INDIAN CONSTITUTIONAL HISTORY

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1 Chapter 1 : INTRODUCTION TO ANCIENT INDIAN LAWS â Indian Legal& Constitutional History Note: Citations are based on reference standards. However, formatting rules can vary widely between applications and fields of interest or study. The specific requirements or preferences of your reviewing publisher, classroom teacher, institution or organization should be applied. This chapter briefly describes the evolution of Ancient Indian Law. Ancient Indian Law India has a recorded legal history starting from the Vedic ages. It is believed that ancient India had some sort of legal system in place even during the Bronze Age and the Indus Valley civilization. Law as a matter of religious prescriptions and philosophical discourse has an illustrious history in India. Emanating from the Vedas, the Upanishads and other religious texts, it was a fertile field enriched by practitioners from different Hindu philosophical schools and later by the Jains and Buddhists. Secular law in India varied widely from region to region and from ruler to ruler. Court systems for civil and criminal matters were essential features of many ruling dynasties of ancient India. Excellent th th secular court systems existed under the Mauryas BCE and the Mughals 16 â 19 centuries which preceded the current scheme of common law in India. This section begins with the idea of Hindu law and traces its origin through the ancient legal literature. The section also describes the evolution of Hindu law during the British rule as well as the modern times, to conceptualize ancient Indian law in relation with modern law. Islamic law became relevant in India only during the medieval period or the middle ages, especially with the advent of the Mughal Empire in the midth century CE. Since the focus of this section is on the ancient Indian law, a brief subsection has been provided that describes the introduction of the Islamic law in India. However, the next section will deal with how British courts replaced the Mughal court systems that were largely prevalent in India. In the ethnic Indian context, some have understood Hindu law to include the diverse laws prevalent in India from the ancient Vedic times until when the British adopted rules for administration of justice in Bengal. Some have used it to distinguish from the Islamic legal system that existed in parts of India annexed by the Muslim Mughal Empires between thirteenth and sixteenth centuries, as well as the British legal system from onwards. Others have categorized Hindu law as being applicable only to those communities that were subjected to it while others followed their own diverse customary laws. Hindu law can primarily be divided into three categories: These three divisions also have an historic context. Hindu Law this system The Classical Hindu Law includes the diverse legal practices connected with the Vedic traditionsin some ways and existing from the Vedic times until when the British adopted rules for administration of justice in Bengal. The British adopted the modern law or the English legal system and replaced the existing Indian laws except for family or personal laws in matters such as marriage, inheritance and succession of property. Family law or the personal law applicable to Hindus is the Modern Hindu Law. The basic arrangement of the present day modern law in a democratic country like India is that elected representatives in the Parliament create laws, which are enforced and put into practice by the state through its agencies, such as the executive e. When lawmakers create laws, they are based on a certain scheme of values of morality, politics, history, society and so on. In comparison with the modern law, the Classical Hindu law was a peculiar legal system as it followed a unique arrangement of law and polity with a unique scheme of values. Although the Classical Hindu law was based on religion with the scholars of the Vedas playing a central role, in reality, it was decentralized and diverse in practice and differed between communities, based on locations, vocational groups like merchant groups, military groups, and temple groups and castes. The features of the Classical Hindu law are discussed in this section. Dharma is wider in meaning than what we understand as law today. Dharma consists of both legal duties and religious duties. It not only includes laws and court procedures, but also a wide range of human activities like ritual purification, personal hygiene regimes, and modes of dress. Dharma provided the principal guidance by which one endeavored to lead his life. The first source is the Veda or Vedas. They are collections of oral texts of hymns, praises, and ritual instructions. Veda literally means revelation. They are the humanly authored written texts that contain the collected traditions. The Page 1

2 Dharmashastra texts are religion and law textbooks and form an example of the Smriti tradition. Since only a few scholars had access to direct knowledge or learning from the Vedas, Smritis are the written texts to teach others. These texts are considered to be authoritative because they are believed to include duties and practices that must have been sourced from the Vedas and they are accepted and transmitted by humans who know the Vedas. In this way, a connection is made between the Veda and smrititexts that make the latter authoritative. Just like the smriti, ch ra finds its authority by virtue of its connection with the Vedas. Where both the Vedas and the Smritis are silent on an issue, a learned person who knows the Vedas can consider the norms of the community as dharma and perform it. They are Sanskrit written texts on religious and legal duties. Dharmashastras are voluminous and there are hundreds of such texts. The two most important features of the Dharmashastras are that they provide rules for the life of an ideal householder and they contain the Hindu knowledge about religion, law, ethics and so on. Topics covered in the Dharmashastra: Dharmashastra contains three categories or topics. The daily rituals include practices about daily sacrifices, the kind of food to eat and how to obtain them, and who can give and who can accept religious gifts. Acharas also provide rules for duties for all the ashrama. Ashrama are the four stages of life that include: Brahmacharya the student life,grahastha the householder, Vanaprashta the forest dweller, and Sanyasa the renouncer. Vyavahara are laws and legal procedures. They are understood to remove the sin of committing something that is forbidden. Traditional hermeneutics deals with the study of interpreting written texts in the areas of religion, law and literature. Purva-Mimamsa provides in detail the knowledge of how to interpret the Vedic texts, including the Dharmashastra text. Important Dharmashastra Texts There are literally hundreds of texts that fall under the category of the Dharmashastra texts. Dharmasutra are the first four texts of the Dharmashastra. The Sanskrit meaning of Dharma-sutra is righteousness-thread or string. The written format of the Dharmasutra is the prose style. They deal with the subject matter of dharma and are like guidebooks on dharma with rules of conduct and rites. Dharmasutra discuss the rules for duties for all the ashrama: Also, they provide the rites and duties of kings and court proceedings. The most important Dharmasutra texts are the sutra of Apastamba, Gautama, Baudhayana and Vaisistha, and they come from various geographical locations in India and are composed at different times between and BC approximately. These texts were often used for legal judgments and opinion. It is not clear if single or multiple authors wrote these texts. They differ in format and structure from the Dharmasutra and are written in the verse form. Commentaries were written by commentators to interpret and provide meaning to the Dharmasutra texts and Smriti, and each commentary devoted itself to one particular text. The digests were not restricted to one text, but were arranged by topic or theme or subject matter and drew upon many different Dharmashastratexts or Smritito explain the topic. For example, there are digests on the topics of the role of king, inheritance of property, religious rites and rituals, adoption, litigation and judicial procedures. The first phase is the period between and This phase starts in when the British adopted rules for administration of justice in Bengal. The second phase is the period between and After, India was formally part of the British Empire, and in, India became independent of the British. The important features of the Anglo-Hindu Law are discussed here. First, the important Dharmashastra texts were compiled and translated by various British administrator-scholars including William Jones, Henry Thomas Colebrooke, J. Sutherland, and Harry Borrodaile. The rules from these texts were applied to Hindus in order to expand British rule in India. Second, the court pandits were used in the British courts to aid the British judges with the interpretation of the Dharmashastra texts and implementation of the Classical Hindu Law. Third, the court pandits became redundant due to sufficient proliferation and development of established case laws of some precedent value. The system of court pandits ended due to sufficient proliferation of, and establishment of, case laws during the first phase. Since there were problems with implementing the Classical Hindu Law, the British legislated and codified various laws or acts, largely in the form of the English Legal System or the modern form of law. The British felt that that there were diverse customary legal practices among various regions and communities in India, and they were not necessarily administratively or otherwise connected with the idealized legal system of Dharmashastra. The British administrators undertook studies and compiled the Page 2

3 diverse customary rules practiced among different communities. These customary rules were consultative resources for the courts. Accordingly, the Dharmashastra tradition lost its relevance. Modern Hindu Law The British adopted especially during and the modern law or the English legal system and replaced the existing Indian laws, except for laws related to family or personal matters like marriage, inheritance and succession of property. The Indian Constitution of has adopted this arrangement wherein in family or personal matters, customary laws of the relevant religious groups or traditional communities apply. During the early s, some parliamentarians and groups had suggested some kind of return to the classical Hindu law with one uniform family law for all the communities. However, there was no unanimous support to this proposal and it was turned down. In, the Parliament adopted the four major legislations governing the family and personal matters of the Hindu community: These codified laws are the first points of reference for the modern Hindu law. Constraints Although the family and personal laws are different for various religious and traditional communities, the courts that adjudicate these matters are common, i. The judges presiding over the matters are common for all the communities and they may not belong to those specific communities whose matters are presented. Also, the state judges have no formal religious legal training about various communities they adjudicate. Then, the Arab merchants came to the Malabar coast in South India. Later, with the advent of the Mughal Empire in the midth century AD, the Mughal judicial and administrative systems were introduced in India. The Mughal court systems were later replaced by the English legal system starting from, when the British adopted rules for administration of justice in Bengal; the next section deals with the Mughal courts systems and the British justice system in India. Also, the last section on the Family Justice System covers the Islamic law in India in civil law matters of marriage, inheritance and other personal law issues. Page 3

4 Chapter 2 : Indian Legal and Constitutional History CCSU LLB Annual Examination, blog.quintoapp.com Rohit De, Yale University, has published A People's Constitution: The Everyday Life of Law in the Indian Republic with Princeton University Press. From the publisher: It has long been contended that the Indian Constitution of, a document in English created by elite consensus, has had little. The President of India is head of the executive branch, under Articles 52 and 53, with the duty of preserving, protecting and defending the constitution and the law under Article Article 74 provides for a Prime Minister as head of the Council of Ministers, which aids and advises the president in the performance of their constitutional duties. The council is answerable to the lower house under Article The constitution is considered federal in nature, and unitary in spirit. It has features of a federation a codified, supreme constitution, a three-tier governmental structure [central, state and local], division of powers, bicameralism and an independent judiciary and unitary features such as a single constitution, single citizenship, an integrated judiciary, a flexible constitution, a strong central government, appointment of state governors by the central government, All India Services the IAS, IFS and IPS and emergency provisions. This unique combination makes it quasi-federal in form. Analogous to the president and prime minister, each has a governor or in union territories a lieutenant governor and a chief minister. Article permits the president to dismiss a state government and assume direct authority if a situation arises in which state government cannot be conducted in accordance with constitution. Union of India decision, [46] [47] such a course of action is more difficult since the courts have asserted their right of review. Constitution and legislature See also: List of amendments of the Constitution of India Amendments Amendments are additions, variations or repeal of any part of the constitution by Parliament. An amendment bill must be passed by each house of Parliament by a with a two-thirds majority of its total membership when at least two-thirds are present and vote. Unlike ordinary bills in accordance with Article except for money bills, there is no provision for a joint session of the Lok Sabha and Rajya Sabha to pass a constitutional amendment. During a parliamentary recess, the president cannot promulgate ordinances under his legislative powers under Article, Chapter III. Deemed amendments to the constitution which can be passed under the legislative powers of parliament were invalidated by Article 1 in the Twenty-fourth Amendment. Basic structure doctrine In Kesavananda Bharati v. Such an amendment will be declared invalid, although no part of the constitution is protected from amendment; the basic structure doctrine does not protect any one provision of the constitution. These "basic features" have not been fully defined, [44] and whether a particular provision of the constitution is a "basic feature" is decided by the courts. The Supreme Court or a high court may declare the amendment null and void if this is violated, after a judicial review. This is typical of parliamentary governments, where the judiciary checks parliamentary power. In its Golak Nath v. State of Punjab decision, the Supreme Court ruled that the state of Punjab could not restrict any fundamental rights protected by the basic structure doctrine. The courts are expected to remain unaffected by pressure exerted by other branches of the state, citizens or interest groups. An independent judiciary has been held as a basic feature of the constitution, [59] [60] which cannot be changed by the legislature or the executive. The constitution is the supreme power of the nation, and governs all laws. According to Article 13, All pre-constitutional laws, if they conflict wholly or in part with the constitution, shall have all conflicting provisions deemed ineffective until an amendment to the constitution ends the conflict; the law will again come into force if it is compatible with the constitution as amended the Doctrine of Eclipse. In such situations, the Supreme Court or a high court determines if a law is in conformity with the constitution. If such an interpretation is not possible because of inconsistency and where separation is possible, the provision which is inconsistent with the constitution is considered void. In addition to Article 13, Articles 32, and provide the constitutional basis for judicial review. Page 4

5 Chapter 3 : Outlines of Indian Legal and Constitutional History Indian Legal and Constitutional History The Governor Generalship of Lord Cornwallis which extended from to creative constitutes a very remarkable and a highly creative period in Indian Legal History. Before, India was divided into two main entities â The British India which consisted of 11 provinces and the Princely states ruled by Indian princes under subsidiary alliance policy. The two entities merged together to form the Indian Union, but many of the legacy systems in British India is followed even now. The historical underpinnings and evolution of the India Constitution can be traced to many regulations and acts passed before Indian Independence. Indian System of Administration Indian democracy is a Parliamentary form of democracy where the executive is responsible to the Parliament. The Parliament has two houses â Loksabha and Rajyasabha. Also, the type of governance is Federal, ie there is separate executive and legislature at Center and States. We also have self-governance at local government levels. All these systems owe their legacy to the British administration. Let us see the historical background of Indian Constitution and its development through years. Warren Hastings became the first Governor-General of Bengal. There was no separate legislative council. It prohibited servants of the company from engaging in any private trade or accepting bribes from the natives. Court of Directors the governing body of the company should report its revenue. Court of Directors for Commercial functions and Board of Control for political affairs. Beginning of a Central legislature for India as the act also took away legislative powers of Bombay and Madras provinces. Four out of six members were appointed by the provisional governments of Madras, Bombay, Bengal and Agra. Lord Canning was the first Viceroy of India. Abolished Board of Control and Court of Directors. Legislative councils were established in Center and provinces. Enlarged the size of the legislative councils. Direct elections to legislative councils; first attempt at introducing a representative and popular element. The member of Central Legislative Council was increased to 60 from Indians for the first time in Viceroys executive council. Under dyarchy system, the provincial subjects were divided into two parts â transferred and reserved. On reserved subjects, Governor was not responsible to the Legislative council. Legislative Assembly with members and Legislative council with 60 members. Provided for the establishment of Public Service Commission. Provided for the establishment of Federal Court. Abolished the Council of India. Lord Warren Hastings created the office of District Collector in, but judicial powers were separated from District collector later by Cornwallis. From the powerful authorities of unchecked executives, the Indian administration developed into a responsible government answerable to the legislature and people. The development of portfolio system and budget points to the separation of power. Railway Budget was separated from the General Budget. From to, the British tried for the centralization of power. It was from the Councils act they shifted towards devolution of power with provinces. The modern executive Council of Ministers owes its legacy to the executive council. Page 5

6 Chapter 4 : Law of India - Wikipedia Indian Legal and Constitutional History Dr. Saurabh Chaturvedi Slideshare uses cookies to improve functionality and performance, and to provide you with relevant advertising. If you continue browsing the site, you agree to the use of cookies on this website. Tax law[ edit ] Indian tax law involves several different taxes levied by different governments. Customs and excise duties are also levied by the Central government. Sales tax is levied under VAT legislation at the state level. The authority to levy a tax is derived from the Constitution of India which allocates the power to levy various taxes between the Centre and the State. An important restriction on this power is Article of the Constitution which states that "No tax shall be levied or collected except by the authority of law. The Central Board of Revenue as the Department apex body charged with the administration of taxes came into existence as a result of the Central Board of Revenue Act, Initially the Board was in charge of both direct and indirect taxes. However, when the administration of taxes became too unwieldy for one Board to handle, the Board was split up into two, namely the Central Board of Direct Taxes and Central Board of Excise and Customs with effect from 1 January Income Tax Act of [ edit ] The major tax enactment is the Income Tax Act of passed by the Parliament, which establishes and governs the taxation of the incomes of individuals and corporations. Act was referred to Parliamentary standing committee which has submitted its recommendations. Act is expected to be implemented with changes from the Financial Year â This method allows GST-registered businesses to claim tax credit to the value of GST they paid on purchase of goods or services as part of their normal commercial activity. Administrative responsibility would generally rest with a single authority to levy tax on goods and services. Exports would be considered as zero-rated supply and imports would be levied the same taxes as domestic goods and services adhering to the destination principle in addition to the Customs Duty which will not be subsumed in the GST. Amalgamating several Central and State taxes into a single tax would mitigate cascading or double taxation, facilitating a common national market. The simplicity of the tax should lead to easier administration and enforcement. GST is applicable from 1 July Trust law[ edit ] Trust law in India is mainly codified in the Indian Trusts Act of, which came into force on March 1, Indian law follows principles of English law in most areas of law, but the law of trusts is a notable exception. Indian law does not recognise "double ownership", and a beneficiary of trust property is not the equitable owner of the property in Indian law. Family law â Personal law[ edit ] Main article: Dowry law in India Family laws in India are different when Warren Hastings in created provisions prescribing Hindu law for Hindus and Islamic law for Muslims, for litigation relating to personal matters. Recent reform has affected custody and guardianship laws, adoption laws, succession law, and laws concerning domestic violence and child marriage. Though the attempt made by the first parliament after independence did not succeed in bringing forth a Hindu Code comprising the entire field of Hindu family law, laws could be enacted touching upon all major areas that affect family life among Hindus in India. The portion of the fiqh applicable to Indian Muslims as personal law is termed Mohammedan law. Despite being largely uncodified, Mohammedan law has the same legal status as other codified statutes. The contribution of Justice V. Krishna Iyer in the matter of interpretation of the statutory as well as personal law is significant. Chapter 5 : Historical Background of Indian Constitution - Clear IAS msrlawbooks Ind Legal His.. Page 2 Historical events 1. Establishment of the East India Company. The Charter of 2. Administration of Justice under the E.I. Company in Presidencies. Chapter 6 : Outlines of Indian legal and constitutional history in SearchWorks catalog Page 6

7 Stanford Libraries' official online search tool for books, media, journals, databases, government documents and more. Chapter 7 : Outlines of Indian Legal & Constitutional History - Mahendra Pal Singh - Google Books User Review - Flag as inappropriate I have gone through the book of the portions available on the internet and am glad to comment that the writer has made every effort to preserve the legal and constitutional history of India with full references in a language simple and lucid, fair and appealing. Chapter 8 : The Indian Legal And Constitutional History History Essay msrlawbooks IND CON HISTORY P T O Page 2 INTRODUCTION Vasco-da-Gama landed at Calicut in, a historical date to reckon with in Indian History. Chapter 9 : Constitution of India - Wikipedia Constitutional history of India The Republic of India is located in South Asia and bordered by Pakistan, China, Bangladesh, Myanmar, Nepal and Bhutan - all historically part of the Indian subcontinent or greater India. Page 7