Indian Legal History

Introductory
•Exploring the history of intellectual
developments in law making.
•Study of an independent body of laws of
Hindu’s and Muslim’s legal thought from
Vedic to modern times.
•Understand changes that took place in
colonial times in India’s economy in
general and legal system in particular.
 Introductory-continued
• What changes in law and courts came and how
they impacted Indians and their old system.
• How did Indian nationalism emerge and what
were the concerns of thee Constitution makers.
• Savigny: Best source of law is custom and not
legislation.
• Henry Maine: Ancient Law
• Life of the law has not been logic. It has been
experience (Oliver Wendell Holmes, Jr.).
 Main Philosophical Trends in early 19th Century-

• The British rule in India effectively started from 1857 when the British
EEC achieved decisive victory over the Nawab of Bengal and his French
allies in 1857.
• The rule of EEC 1757-1858.
• Industrial Revolution in Britain (1760-1840) not only brought
fundamental changes in manufacturing but it also brought about
changes in laws, government and attitude towards colonies.
• During early 19th century there was turbulence in philosophy, economy
and politics.
• Main schools during this period were German idealism, utilitarianism
and Marxism. Others were Conservatives, Liberals and Liberal-Utilitarian.
• India became a fertile ground for experimentation of several conflicting
ideologies.
 Continued-
• Karl Marx; “England is causing a social revolution in Hindustan to
shake up the static and feudal order in India. Thus, she (England) was
the unconscious tool of history in bringing about the revolution (Marx
and Engels, British Rule in India, 1853).” Though Marx did not approve
of the method with which the British ruled India.
• Till 18th century British followed the Policy of Non-Interference but
Industrial Revolution changed it.
• The duration of EEC (1757-1858) and Industrial Revolution (1760-
1858) was common and in fact revenue from India, primarily forest
revenue, financed Industrial Revolution in Britain.
• The Philosophy of Utilitarianism developed by Jeremy Bentham in
Britain in early 19th Century based on the ‘greatest happiness
principle.’
 Utilitarianism vs. Evangelical Movement-

• During the early 19th Century the British government

pursued spread of Christianity in the world through
the Church of England.
• The British EEC provided tacit support to the
activities of Evangelical Movement.
• In course of time Utilitarianism of Bentham took
away the sheen from the Evangelical members and
appealed to people in governance as Bentham
privileged ‘common social good over indiscriminate
individualism of Adam Smith’.
 British Rule of India in 19th Century-

• Ideologies like Utilitarianism and Evangelicalism were in the forefront.

• Members of ICS and Governor Generals were unable to implement Policy
of Good Governance back home in Britain so they wanted to implement
them in India.
• They wanted to civilize and modernize India.
• Main champions were either Benthamite or influenced by Bentham.
• They were John Stuart Mill, Lord Macaulay, Lord Cornwallis, Lord
Dalhousie and Lord Canning.
• If you compare the period common between EEC and Industrial
Revolution in Britain we get a period of 77 years.
• During this period Britain was leapfrogging to modern systems of
manufacturing using science and technology and India was moving
slowly but steadily transforming its laws and governing institutions.
 East India Company
• Incorporated in England under a Charter by
Queen Elizabeth on 31.12.1600.
• Title: The Governor and Company of Merchants
of London Trading into the East Indies.
• No trading in Europe. License required from the
Company to trade. For 15 years. Renewable.
• Managed by Court of Directors. Annual meeting
called Court. Governor and 24 Directors.
 Powers of the Company
• Make reasonable laws, constitutions, orders and
ordinances for good government of company and
its employees.
• The Company can dispense justice and can
impose fine, punishments and penalties.
• Legal instruments made should be reasonable
and not repugnant to the laws of England.
• Ilbert: The germ out of which the Anglo-Indian
codes were ultimately developed.
 Second EEC and merger
• A second company incorporated on 05.09.1698
by William III. The two companies unified in
1709 under the award of Lord Godolphin.
• The new company called as East India Company
• The EEC acquired specific powers from the
Crown like Royal Commissions and Charter of
1661.
 Charter of 1661
• This empowered the company to appoint a Governor
and Council at its factories.
• They had similar judicial and executive powers in
accordance with the laws of England. Thus Charter of
1661:
• Authorised the Company to try and punish all persons
including Indians.
• Opened doors of India to introduction of British laws.
• Conferred judicial power on the executive i.e.
Governor and Council.
 References
• For books by Jeremy Bentham:
https://www.google.com/search?q=jeremy+ben
tham+books&rlz=1C1GGRV_enIN825IN825&oq=
jerem&aqs=chrome.0.69i59j69i57j69i60j0l3.979
6j1j8&sourceid=chrome&ie=UTF-8
• For books by James Mill:

https://www.google.com/search?q=james+mil
l+books&rlz=1C1GGRV_enIN825IN825&oq=ja
mes+mill+books&aqs=chrome..69i57.11218j1j
8&sourceid=
• For books by John Stuart Mill:

https://www.google.com/search?q=john+sstu
art+mill+books&rlz=1C1GGRV_enIN825IN825
&oq=john+sstuart+mill+books&aqs=chrome..6
9i57j0l5.17170j1j7&sourceid=
chrome&ie=UTF-8