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LEGAL HISTOTY ASSIGNMENT

INFLUENCE OF ENGLISH COMMON LAW IN THE

INDIAN LEGAL SYSYTEM

Submitted By,
Amithab Sankar
1477
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INDEX

S.NO CONTENTS P.NO

1. INTRODUCTION 3

2. MIGRATION OF COMMON LAW INTO INDIA 3

3. COMMON LAW ADAPTABILITY IN INDIA 4

4. EVOLUTION OF COMMON LAW IN INDIA 5

5. CONFLICT REGARDING THE LAWS IN INDIA 6

6. CODIFICATION OF LAWS IN INDIA 7

7. LAW AFTER INDEPENDENCE 8

8. CONCLUSION 8

9. BIBLIOGRAPHY 9
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INTRODUCTION:
Common law, also known as case law, is law developed by judges through decisions of
courts and similar tribunals. A "common law system" is a legal system that gives great
precedential weight to common law, on the principle that it is unfair to treat similar facts
differently on different occasions. The body of precedent is called "common law" and it binds
future decisions. If a similar dispute has been resolved in the past, the court is bound to
follow the reasoning used in the prior decision. The principle by virtue of which this is
followed is called stare decisis.

The only certainty about the migration of the common law of England into India is that the
English brought it, their judges administered it and that it infiltrated deep into the laws of the
country and has, to some extent , moulded its thoughts and customs. The development of a
modern legal system and the implementation of the common law have long been noted as a
benefit of British colonisation. The expansion of the British Empire during the 18th and 19th
centuries led to the transplantation of the common law throughout the world. The beginning
of Indian codified common law is traced back to 1726 when a Mayor’s Court in Madras,
Bombay and Calcutta was established by the East India Company. This was the first sign of
Company’s transformation from a trading company to a ruling power with the added flavour
of new elements of the Judiciary.

MIGRATION OF COMMON LAW INTO INDIA:

The English first came to India as trading companies under a series of charters granted by
successive English sovereigns. The earliest is of Elizabeth in 1600. It gave the company
power to make reasonable laws for the good government of the company and its officers ,
provided they were not contrary to “ the laws , statutes or customs of the English realm.” Sir
James Stephen thinks that this first introduced the laws of England into India.

These companies grouped themselves in settlements called factories and fortified them and
by gradual stages treated them as English territory although no sovereignty was claimed and
that of the Indian rulers was acknowledged. This made their position anomalous. Ordinarily ,
they would have been governed by the Indian rulers and would have been amenable to their
laws . But they found that those laws were unsuited to English society and ideas , so a charter
of 1661 empowered the company to exercise civil and criminal jurisdiction “ according to
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the laws of the Kingdom ”1, in the factory areas. Later charters authorized the establishment
of Courts of Judicature to decide “according to justice , equity and good conscience and
according to the laws and customs of merchants and by such ways and means as the Judges
should think best. ”2

COMMON LAW ADAPTABILITY IN INDIA:

Common law was first developed in England as a process of applying continental feudal law;
a process that developed over time into a hallmark of English life and into something quite
distinct from the application of law on the continent. Common law was and is a particular
process of investigation and decision-making.3 English common law developed to protect the
property of individuals and limit the power of the state to expropriate resources. From the
time of the Magna Charta in 1215, the common law was supported by the aristocracy as a
hedge against encroachment on land and liberty by the state.The common law was developed
as a procedure that if properly followed, would result in a judgment for the plaintiff or
defendant. The process, rather than the application of a code or law, is intended to lead to
justice. This process was developed in the relatively homogeneous context of England where
the oral tradition and the elevated, respected role of the judiciary were elements of the
political culture. Common law scholars and practitioners argue that one of the strengths of
common law is its evolutionary nature (Rubin and Bailey, 1994, Eisenberg, 1988, Hayek,
1973, Morriss and Meiners, 2000). Because the common law system relies on case law it can
evolve over time in response to changes in the political environment. Presumably, this would
make the common law particularly advantageous for transplantation into other contexts as the
body of case law could develop in a way that responds to the needs of the society in which it
is applied. Civil law, the continental European system, is based on legal codes that are
interpreted by judges. English common law has been coupled with an adversarial system of
justice. An adversarial system, such as that which is in use in both the United States and
Britain, is one in which the parties to a dispute are pitted against one another in a relatively
brief, oral contest with the expectation that competition between the two sides will reveal the
truth. The plaintiff, the defendant and lawyers representing them are gathered together to
present their case before a jury and a judge, who is expected to be an impartial arbiter of
justice. Perhaps due to the emphasis on process, the common law system gives us the idea of

1
Charter of Charles 2,1661
2
Charter of Charles 2,1683
3
Charter of George 1,1726
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legal precedent. Statutes may be used in common law systems as well, but judicial precedent,
or the reliance on previous decisions to guide the present decision, dominates the justification
of legal decisions. Paul H. Rubin argues that this makes for more efficient and more
decentralised legal decisions and systems (Rubin, 1977, Rubin, 1994). Decentralisation of
decision- making is yet another argument for the adaptability of the common law. The
expectation under common law systems is that as a society changes, the law will change to
correspond with it through the distinguishing of precedents, while still providing a set of rules
which people can expect to have to adhere to in both their business and personal interactions.

EVOLUTION OF COMMON LAW IN INDIA:

The earliest of these courts was established in 1726. They were called Mayor’s Courts but
their authority only extended to English subjects and to such Indians as chose to submit their
jurisdiction. Morley4 , differing from Sir James Stephen, says that the common law of
England was introduced into India by the Charter of 1726 and also the English statute law as
it prevailed in that year.

But the activities of these companies were not confined to the factories ; and their officers
gradually assumed the management of affairs in the interior of the country as well. But the
power that they exercised was undefined , so in 1765 Clive persuaded King Shah Alum to
grant to the company at Calcutta a firman , or edict , to collect or administer the revenues of
Bengal , Bihar and Orissa. This involved the establishment , not only of officers to collect the
revenue , but also of courts to administer civil and criminal justice.

These courts were directed to follow the Mughul pattern as nearly as they could , namely , to
administer the Mohamedan law in criminal cases ; and in civil cases , the laws of the parties .
But it was soon found that some of them , such as those of mutilation for theft and stoning for
sexual immorality , could not be administered by English courts ; nor could the customs of
sutee and infanticide be tolerated5. So the local laws were modified from time to time by a
series of Regulations until in 1860 the whole of the indigenous criminal law was abrogated
and the Indian Penal Code was substituted in its place. So also the Mohamedan law of
evidence , which incapacitated unbelievers from testifying in cases that affected Muslims ,
was replaced by the Indian Evidence Act in 1872. Both Codes are based on the common law

4
Morley’s Digest, Vol 1(1850)
5
Advocate – General of Bengal v. Ranee Surnomoye Dassee ( 1863) 9 Moo.I.A. 387 , P. 409
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of England and make remarkably few departures from it. They are still in force almost as they
stood when enacted. Subsequent legislation has effected only a few minor alterations.

Between the years 1765 and 1774 the English government decided to assume to itself the
sovereign powers that had been conceded by the Mughul Rulers of India and one of the
things it did was to establish Supreme Courts at Calcutta , Madras and Bombay between 1774
and 1823. Those courts were empowered to determine suits against all inhabitants in their
areas in matters of inheritance and succession to lands ; and in matters of contract and
dealings between party and party , in the case of Mohamedans , by the laws and usages of
Mohamedans , and , in the case of Gentoos ( Hindus ) , by the laws and usages of the
Gentoos ; and where only one of the parties was a Mohamedan or a Gentoo , by the laws and
usages of the defendant. But the extent of this jurisdiction was undefined , so for a time there
were parallel courts , one set deriving authority from the Crown and the other from the
company . This naturally led to friction.

CONFLICT REGARDING THE LAWS IN INDIA:

Another problem also had to be faced . Many Indians were not then , either Hindus or
Mohamedans . They were for instance ,the Portugese and American Christians ; also Parsees ,
Sikhs , Jains , Buddhists and Jews . The tendency of the courts was to leave them in
enjoyment of their own family laws except in so far as they showed a disposition to place
themselves under English law. Therefore , without any rules to guide them , judges had to
choose between English Acts of Parliament , the English Common Law , Hindu and
Mohamedan Law , usage , scripture , Charters , Letters Patent and Regulations.

These conflicting jurisdictions and uncertainity about the law led to confusion and the judges
reported to Parliament in 1833 that “In this state of circumstance , no one can pronounce an
opinion or form a judgment”.

This led to the establishment of High Courts between 1862 and 1865. These courts
amalgamated the parallel courts that were then functioning and had sole authority in the
principal factories , by then known as Presidency towns. They were also made Courts of
Appeal over all courts in the interior. The report also led to a codification of the laws. But
until that happened the laws that these High Courts were called upon to administer were the
same as before , namely , the personal or customary laws when the parties were subject to the
same personal law or custom of the defendant.
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This left a large field uncovered and in such cases the civil courts were directed to act in
accordance with “justice , equity and good conscience” . English judges naturally interpreted
this to mean the rules and principles of English law. In this way , indigenous law and usage
were supplemented and codified and , in some cases , superseded by the English law, the bulk
of which was the common law.

CODIFICATION OF LAWS IN INDIA:

So far as codification is concerned , one reason that compelled its introduction was the chaos
in which the laws were ; but there was also another. Ilbert says that – “ it became necessary to
draw up for the guidance of untrained judges and magistrates a set of rules which they could
easily understand , and which were adapted to the circumstances of the country”6.

But though the bulk of the laws (excluding the personal laws ) was codified , the Codes did
no more than set out in codified form the principles of the common law with only minor
modifications. Among the great Codes that are still in force almost as they stood when
enacted are the Penal Code, the Contract Act and the Indian Evidence Act. The law of torts
has never been codified. Its application in India is based on common law principles and
English decisions are still followed.

But the common law of England was not applied indiscriminately. Modifications were found
to be necessary even in the factory areas ; and outside that the need for discrimination was
even greater ; for example , it would have been monstrous to enforce the English criminal law
of bigamy in a country where polygamy was allowed and practiced ; so also in the realm of
contract it was found desirable to retain the indigenous system of negotiable instruments
known as hundis.

LAW AFTER INDEPENDENCE:

At the dawn of independence, the parliament of independent India was the forge where a
document that will guide the young nation was being crafted. It will fall on the keen legal
mind of B. R. Ambedkar to formulate a constitution for the newly independent nation. The

6
Government of India ( 2nd ed., 1907 ) , p. 339.
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Indian Bar had a role in the Independence movement that can hardly be overstated – that the
tallest leaders of the movement across the political spectrum were lawyers is ample proof.
The new nation saw its first leader in Jawaharlal Nehru, and a paternal figure in M. K.
Gandhi, both exemplary lawyers. Perhaps it is the consequent understanding of law and its
relation to society that prompted the founding fathers to devote the energy required to form a
Constitution of unprecedented magnitude in both scope and length.

The Constitution of India is the guiding light in all matters executive, legislative and judicial
in the country. It is extensive and aims to be sensitive. The Constitution turned the direction
of system originally introduced for perpetuation of colonial and imperial interests in India,
firmly in the direction of social welfare. The Constitution explicitly and through judicial
interpretation seeks to empower the weakest members of the society.

India has an organic law as consequence of common law system. Through judicial
pronouncements and legislative action, this has been fine-tuned for Indian conditions. The
Indian legal system’s move towards a social justice paradigm, though undertook
independently, can be seen to mirror the changes in other territories with common law
system.

From an artifice of the colonial masters, the Indian legal system has evolved as an essential
ingredient of the world’s largest democracy and a crucial front in the battle to secure
constitutional rights for every citizen.

CONCLUSION:

Due to the tremendous impact that the English common law has had on Indian laws , even the
codified ones , judges resort freely to English decisions for the elucidation of point that are
obscure and many references to English decisions will be found even in the Supreme Court of
India. Judges and lawyers here feel and hope that this inter- play of thought will continue for
a long time because it is a healthy thing and will prevent stagnation , as codified laws tend to
become outworn without the constant stimulus of fresh ideas. This clearly tells us about the
migration of common law from England to India and how it shaped the legal system in India.
The different court Systems set up by the British in India and the following of the judicial
decisions by the Indian courts clearly tells us about how the common law system in India has
attained the current status.
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BIBLIOGRAPHY

 www.investopedi.com
 www.legalserviceindia.com
 www.Barcouncilofindia.org
 www.jagranjosh.com
 www.lawteacher.net