PHILOSOPHY OF JURISPRUDENCE: THE INDIAN SCENARIO

The legal system of a country is part of its social system and reflects the
social, political, and cultural characteristics of that society. It would be more
justified to regard the Indian Legal System as a mixed system.

The main streams to form the Indian legal system are -.

 The laws coming from our religions.

 The common law - Indian codes or judicial procedure owe a great
deal to procedure in England.

CLASSICAL APPROACH

Hindu legal system is the most ancient legal system of the world. It is a
logical and broad law. It is based on the concept and philosophy of ‘Dharma’
or ‘Dharmashastras’. It includes the concept of Nyaya or justice – the law which
sustains the entire universe.

Dharma is defined as a person’s moral and social obligations, both as an

individual and also as a member of society. It is based on the importance of
scared law. The aim of Dharma is to regulate human behaviour. That every
individual owed a duty towards the other members of the society and also the
right possessed by every man.

Dharma means righteousness, duty, and law, which applies to everyone

and it consists of truthfulness, non-injury, and generosity, among other virtues.

According to Dharma, Law owes its existence to God. There are three
sources of Dharma,

 The first one is Vedas, - in Rig Veda.

 The second one is Smritis, and
  The third one is Achara.
1. Smritis means remembrance of a tradition, which is preserved by the authors
in the written form. The famous which are still relevant in the 21st century,
are
 Manu Smriti
 Yajnavalkaya Smriti
2. Achara which deals with religion and morality. We use Achara on the issue
where the Vedas & Smritis are silent.
3. Manu Smriti - It is a systematic collection of rules of the Dharmashastras
which covers all the branches of the law. The language is simple and has
more authoritative source. It explains the legal duties of the people - deals
with religion, administration, economics, civil and criminal laws, marriage,
succession, etc. 18 titles of ManuSmriti are similar to the modern
laws, some of them are -
 non-repayment of debt
 deposit, partnership business,
 resumption of gifts,
 non payment of wages,
 duties of husband and wife,
 adultery,
 disputes between the master and the servant,
 breach of contract,
 gambling,
 theft,
4. Narada Smriti - It Consists of substantive as well as procedural laws.
Substantive laws are the laws that define the Offence and Punishment while
procedural laws are the laws that define the procedure of the crime.
5. Arthashastra - It Consists of the political treaties of Hindus.
PUNISHMENT & LEGAL PROCEDURE IN ANCIENT ERA

In ancient India; we have 6 courts with different jurisdictions. They are

 Kula (Family Council),

 Shreni (Council of trade or profession),
 Gana (Assembly of a village),
 Adhikrita (Court appointed by the King),
 Sasita (King Court), &
 Nripa (The King).

Gautama, provided the procedure for the witness, how they came and took oaths
(sapatha) and tell the truth, and also penalties if they are in court.

Later Kautilya also gave 26 sutras for registering the case and witness
interrogation. He also introduced the science of forensic to investigate the
matter of murder, robbery, and theft.

The concept of Danda or Punishment came to do justice with the accused

party and to discipline the guilty person. It is the duty of the King to maintain
peace & humanity in his region, for this he can use danda as a tool. ). Only the
serious and ugly cases go to the King for judgments. The remaining cases are
solved by the seriousness of cases by the courts (Kula, Shreni, Gana).

There were two types of punishments - Corporal & Pecuniary/

Monetary, Bhramans are exempted from the corporal one.

The punishment in ancient India was more brutal than that of today. The
punishment is divided as per the court. If the seriousness is higher the court is
also higher. - If higher the court the punishment is also higher.
 For example - In a case of misbehaviour, done by any family member the
judge is free to do punish the individual physically - either with a rope or with
bamboo. Further, the rule was that they are only allowed to spank them in the
back - not in the head or chest.

MEDIVAL INFLUENCE

The pre-colonial India, it is clear that rules were put in place for the benefit of
the ruler and were identified with religious expectations and demands. The rules
were to increase the wealth (artha) of the ruler.

There were king and the priest - who made authoritative decisions which were
discriminatory for the citizens. These decisions were enforced by appealing to
the religious mandatory duties of citizens to the advantage of the ruler (as
citizens did all the jobs, from cultivation of crops to serving in the army).

In the broad sense - law in ancient India was a command of sovereign that
is backed by sanctions and this process took place under a religious cover.
Nonperformance of these duties attracted sanctions (i.e. punishments).

Thus, all law was originally customary law. There was no statutory law in
ancient India because there was no parliament or legislature in those times.

Of course it is to be noted that the early law was influenced by the natural
law principles and later Christian natural law principles.

MODERN TRENDS

The modern Indian legal system is based on the common law system.
And also India is a secular country. So the ancient Hindu legal system has lost
its relevance in the modern world.
 Post-colonial period witnessed significant amount of law-making. That
was total transformation in India.

This started with the framing of Indian Constitution. The fundamental rights
and directive principles brought in the idea of greater social equality.

On the basis of the remedies sought and the procedure followed, all laws can be
grouped into two categories, namely,

 Civil Laws - is related to the rights duties and obligations of individual

members of the community between themselves
such as family law, the law of property, the law of tort, the law of
contract, the law relating to commerce and business, labour law, law of
taxation etc.

 Criminal Laws - is concerned with wrongs against the community as a

whole, while civil law.

 From the perspective of sociological jurisprudence – there is the Hindu

code.It Commonly includes the Hindu Marriage Act, 1955, the Hindu
Minority and Guardianship Act, 1956, the Hindu Succession Act, 1956
and the Hindu Adoptions and Maintenance Act, 1956.

The Hindu Marriage Act, 1955 brought about major concept of

monogamy and uniform provision for dissolution of marriage.

 Panchayati Raj Institutions (village level administration) provides for

self-dependent villages having resources and even the dispute resolution
being done at the village level. This Model is partially mentioned in
Article 40 of Constitution of India.
  Access to justice for the people of India and Public Interest Litigation
(PIL) is the greatest contribution the Indian judiciary. PIL is a concept
aimed at increasing the accessibility to justice and forms a part of
constitutional jurisprudence in India

 Compensatory jurisprudence – the chief object of awarding compensation

is to make good for the loss sustained by the victim. The logic is to
protect the human dignity violated by the accused. There can be special
damages for the loss of earning or expenses for medical treatment. Or
there can be general damages in the terms of money. Criminal courts
provide compensation under Section 357 (3) of Cr.P.C.

Inspired by the Constitution, Parliament, the State legislatures and local

councils make and repeal the laws, as occasion demands. Courts interpret them
in specific fact situations and, in the process, extend the scope and application
of the laws. The common man may get lost in the maze of legislations coming
from all sides and contribute to its complexity by creating his own laws through
contracts and agreements with others he has to deal with.

In a Welfare State like ours, the laws of the country are too numerous,
varied and complex.

__________________________________________________