INDIAN LEGAL SYSTEM - HISTORY,

DEVELOPMENT AND STRUCTURE

"Thejudicial sysleiit Ls by far the npml imporfanf and

s ~ i f i c c minslrumo~t
l inpresewingdentocracy Mdrheiule
of law:.

- P.N. Bhaowatl
 CHAPTER - I1
INDIAN LEGAL SYSTEM - HISTORY, DEVELOPMENT AND STRUCTURE

Indian Law 1s a unique blend of Engllsh, Hindu,

Islamlc and other influences upon a culture whlch has a long
history of 3000 years.

2.1. IIISTORY 01"INDIAN LEGAL SYSTEM

Indian history can be divided Into approximately
four periods:
i. Anclent Indla;
ii. The Musllm Period;
lii. The Britlsh Period; and
iv. India Today.

2.1.1. ANCIENT INDIA

The Indran subcontinent is the cradle of one of
the world's oldest civilizations - the Indus civilization or
Harappa Culture which flourished from 2700 to 1500 B.C. In
the succeeding centuries, roughly between 1500 to 500 B.C.
the Harappa culture declined and during this period Aryans
invaded the subcontinent from Central Asia.

When the Aryans settled in India, they themselves

formed into three classe.6: the priests; the colnmon people
and the warriors. The Dasas or indigenous people are
considered inferior and treated by Aryans a8 slaves. his
distinction evolved into the caste groupings whlch are found
In India today. Sanskrit, the language of Aryan invaders
became the language of the educated upper castes.

From about 500 B.C, till the Musllm invaded India

in the twelfth century, a series oi Hzndu Kings ruled India
and H ~ n d ucivil~zationprevailed. A distinctive CeatUre of
the Hindu civilization was that it strictly adhered to the
principle of 'Varna Ashrama Dharma', according to which the
spiritual salvation of an individual or harmony and
stability of the soclety lay in the persuit of righteousness
by all members of the cmmunity but in diverse ways
appropriate to their ages and stages of life. The Hindu
society relied on the Dharma and vlewed the legal, moral and
religious duties as different aspects of Dharma.

Tho lllndu law, one of the oldest systemn of the

world, has its origin ln the Vedas and Manu's Manava
Dharmashastra. Manu, during the first two centuries A.D.
compiled a series of religious legal and moral
pronouncements in his Dharmashastra. In the succeeding
centuries, many legal texts are developed based on Manu's
Dharmashastra. The two main schools of law thus developed
are Mitakshara and Dayabhaga, The Dayobhaga school
prevailed in Bengali speaking areas of Bengal and AsSam: and
Mitashara prevailed in the rest of India. The two schools
mainly differed in thelr laws of inheritance and certain
aspects of llindu joint families.

In the ancient hlndu society, the dlsputes are

mainly between groups of people but not amongst the
individuals. Mediation and conciliation are mainly used to
resolvc the disputes and to cause justrce. Thus,
conciliation, consensus and nonviolence are the traditional
foundations of Indian Justice.

2.1.2. THE MUSLIM PERIOD

The twelfth century marked the beginnrng of a long

period of Musllm dominance, flrst in northern India, and
later, under the Mughals, in almost all parts of the
subcontrnent. The Islamic Law has become a part of the
country's legal and soclal heritage.

The Islamlc Law is derived from two main sources:

the Qur'an and the Sunna of the Prophe Mohammad. Islamic
Law is based on the five doctrines which are collectively
called Iman, meaning Faith. The first doctrine is faith in
the absolute unity and oneness of God. The second doctrine
is the belief in angels and their work as messengers and
helpers of God. Third doctrine concerns Prophetic
messengers. The fourth belief is in a final judgment, or
doctrrne of the last things. The fifth fundamental Islamic
belief is in 'divine decree end predestination'. Thus, the
Islamic Law is based on the religious beliefs as the lllndu
Law.

There are many similarities between the Musllm and

the Hindu legal systems. Both legal cultures used Consensus
and stressed the importance of maintaining harmony. For
both cultures, there are no individually based rights.
Instead, people had duties and relrglon and law are treated
in the same way in both the legal systems.

2.1.3. THE BRITISH PERIOD

In search of trade and conquest, European warriors
and traders visited India at an early period. Of the many
European invaders, the British had exerted the greatest
Impact upon the country through their East India Company, a
commercial venture founded by the private businessmen in
London.

The East India Company was established in England

with the object of furthering the British commercial
interests in overseas countries. The company's
representatives set their foot in India to carry on trade
effectively during the reign of Jehangir. They established
a few factories and slowly these have became the bases for
the establishment of British rule in India,
 The Englishmen realising the importance of a sound
judrcial system in India, undertook the task of evolving a
judicial system at the very outset of t h e w administrative
career. An elementary judlclal system was founded primarily
In the three Presldecy Towns - Calcutta, Bombay and Madras.
Later, the Supreme Court is established at Calcutta in the
year 1774. It is a court of English Law. In course of time
similar courts are established at Madras in. 1801 and at
Bombay in 1823.

A notable feature of the Indian judic~al system

before 1862 is the existence of two parallel systems of
courts - the Supreme Courts in the Presidency Towns and the
adalats in the territory, known as the 'Mofussil Courts'
outside the Presidency towns. The judicial system in the
Presidency towns was developed prrmarily to cater to the
needs of the Englishmen residing there and therefore, it was
a replica of the English judicial system. On the other
hand, the British administrators, realising the fact that an
alien Judicial system could not work effectively in the
Indian populated regions, promoted the establishment and
working of the adalat system which mainly administered the
Hindu and the Muslim laws. In 1862, the judicial systems
existing in the Presidency Towns and the Mofuaails are
unified by establishing the High Courts which are the
precursors of the modern system of l a w and justice in India.
 Another notable development in the evolution of
the judiciary is the emergence of the Privy Councrl as the
ultlmate court of appeal for India. The Privy Council
played a vital and creative role in the development of
Indian Legal System.

2.1.4. LEGAL SYSTEM IN MODERN INDIA

The independence of India resulted in certain

inevitable changes in the structure of the judiciary, the
most significant of which was the substitution of the
Supreme Court in the place of Privy Council as an ultimate
oourt of appeal. The present Judicial system in India
consists of a hierarchical network of courts. Liberal
provisions exlst for taking appeals lrom the lower to the
higher courts. The Supreme Court, the highest court of the
land, enforces a high standard of justice and promotes a
common approach to the law throughout the country.

2.2. GROWTH OF LEGAL PROFESSION IN INDIA

The legal profession constitutes an important part

of the society for administration of justice. To quote the
Law Commission Report (1958) "A well-organized system of
judicial administration postulates a properly equipped and
efficient Bar". Therefore, without a well organized
profession of law, the courts would not be in a position to
administer justice effectively.
 The advocates of the Mayors courts in 1726 in the
Presidency towns are not regulated by any authorized frame
of rules and no specific provision exlsted for laylng down
qualifications for them. Therefore, those who practiced law
at that time arc devoid of any legal training or the
knowledge of law. The first step in the organization of
legal profession in India la the establishment of the
Supreme Court at Calcutta in 1774. The Supreme Court is
empowered to admit and enroll the advocates and attorneys-at
law. The term advocate at that time referred to the English
and Irlsh Barristers and advocates in Scotland. The
expression 'Attorney' then meant only the British attorneys
or SOliCltors. The Supreme Court, thus, was exclusively
meant for the British legal system and the indigenous Indian
legal practitioner had no entry into this court. Similar
situation persisted in the Supreme Courts of Bombay and
Madras.

In 1861, legislation is passed to establish High

Courts at Calcutta, Bombay and Madras. The High courts were
empowered to admit and enrol advocates, Vakils and attorneys
to appear for the suits in High Court. In 1879, the Legal
Practitioners Act was enacted to consolidate and amend the
law relating to'legal practitioners. This Act empowered the
High Court to make rules, regarding the qualifications and
admission of proper persons to be pleaders and mukhtars of
the High Court.

According to the rules framed by the Chartered

High courts, there are basically three classes of lawyers
namely attorneys, advocates and Vaklls. VBkils are the
persons who had taken their LLB degree from an Indian
Unrverslty and had the same standlng as those of attorneys.
In the non-chartered High courts, there used to be
advocates, pleaders and mukhtars. Pleaders were enrolled to
practise before the subordinate courts after passing the
pleadership examrnation conducted by the High courts. After
certain years of practise, they enrolled themselves as High
Court Vaklls. Besides the pleaders, there are mukhtars, who
after completion of Matriculation passed the mukhtarship
examination held by the High courts and mainly pleaded
before the criminal courts. Thus the legal profession in
India had a chaotic scene of several categories of legal
professionals.

The Government of India appointed the Indian Bar

C m i t t e e popularly known as Chamier Conunittee in 1923 to
report on the proposal of the legal professionals to
constitute an Indian Bar. The committee recommended for the
unification of different categories of legal practitioners
and for the establishment of a Bar Council for each High
courl. In tune with the recon~mendatlonsot thc Charniers
committee to establish Bar councils, the Ccntral legislature
enacted the Indian Bar Councils Act in 1926. This Act had
left out the pleaders and the mukhtars practismg in the
mofussil courts entlrely of its scope and did not bring
about a unified Indian Bar. The Indlan Legal profession,
not satisfied wlth the provisions under the 1926 Act,
continued their effort to establish a unlfied all-India Bar.

The establishment of the Supreme Court of India in

1950 gave a new stimulus to the demands of the Indian legal
profession. As a result, the All India Bar Committee is
constituted in 1951 which submitted its report in 1953 with
W e recommendations to create a unlfied national Bar. The
Committee also recomnended for the creation of all India Bar
Council and State Bar councils. It also emphasized the
principle of autonomy of the Bar consisting wholly of the
members of the profession.

In 1961, the Parliament enacted the Advocates Act

to amend and consolidate the law relating to legal
practitioners and to provide Tor the constitution of the Bar
Councils and an All India Bar. The Act establishes an All-
India Bar Council and a common roll of advocates, nn
advocate on the common rolls has a right to practise in any
part of India and in any court, including the Supreme Court.
The Bar has been integrated into a single class of legal
practitioners known as advocates. The Act creates a State
Bar Council in each State and a Bar Council of India at the
Centre. The State Bar Councll is empowered:

* to admit persons as advocates on its rolls,

* to entertain and determine cases of misconduct against
advocates on its rolls; and
* to safeguard the rights, privileges and interests of
advocates on its rolls.

The Bar Council of India prepares and maintams a

common roll of advocates, lays down standards of
Professional conduct and legal education.