DEVELOPMENT OF LAW IN THE COMMON

LEGAL SYSTEMS

SUBMITTED BY: SUBMITTED TO:

VINEET MALOO DR. GURNEET
SINGH
STUDENT ASSISTANT
PROFESSOR
ROLL NO. 18171 OF LAW

RAJIV GANDHI NATIONAL UNIVERSITY

OF LAW,
PUNJAB

16 AUGUST 2018
 ACKNOWLEDGEMENT

On completion of this project it is my present privilege to

acknowledge my heartfelt gratitude and indebtedness
towards my teachers for their valuable suggestion and
constructive criticism. Their precious guidance and
unrelenting support kept me on the right path throughout
the whole project and very much thankful to my teacher
incharge and project coordinators for giving me this
relevant and knowledgeable topic.

I wish to express my sincere gratitude to my teacher

Sangeeta Taak ma’am for their guidance and
encouragement in carrying out this project work.

I also wish to express my thanks to my group members and my

friends for their ideas because of which this project became
more captivating. I am also thankful to my institution library
for providing a broad range of books to learn more.
RAJIV GANDHI NATIONAL UNIVERSITY OF
LAW, PUNJAB

SUPERVISOR’S CERTIFICATE

Dr. Gurneet Singh Patiala

(Punjab)
(Assistant Professor of Law)
Date:

Rajiv Gandhi National University of Law

Punjab

This is to certify that the Dissertation titled: Development of

law in common the legal systems , submitted to Rajiv
Gandhi National University of Law, Patiala in partial
fulfillment of the requirement of the B.A.LLB (Hons.).
Course is an original and bonafide research work carried out
by Mr. Vineet Maloo under my supervision and guidance.
No part of this project has been submitted to any University
for the award of any Degree or Diploma, whatsoever.

Dr. Gurneet Singh

 CONTENTS
1. PROJECT OUTLINE………………………………………………….

1.1 INTRODUCTION

1.2 OBJECTIVE AND PURPOSE

1.3 SCOPE OF THE STUDY

1.4 HYPOTHESIS

2. HISTORICAL BACKGROUND OF COMMON LAW………………..

3. DEVELOPMENT OF COMMON LAW………………………………...

3.1 MEDIEVAL ENGLISH COMMON LAW

3.2 INFLUENCE OF ROMAN LAW

3.3 THE COMMON LAW TO THE COLONIES AND

COMMONWEALTH BY RECEPTION STATUE

3.4 LAW AFTER INDEPENDENCE

3.5CHALLENGES FACED BY INDIAN LEGAL SYSTEM

4. COMMON LAW IN INDIA…………………………………………….

5. CONCLUSION… ………………………………………………………..

6. BILIOGRAPHY…………………………………………………………..
 1. PROJECT OUTLINE

1.1 INTRODUCTION
The common law, sometimes known as case law, is a legal system in
which previous court decisions establish legal precedents & new
decisions must be in keeping with past decisions. Common law may
also refer to a legal system which relies on common customs and
usages, rather than on codified written laws, or statutes. The common
law forms a major part of the legal systems of regions in the world that
are or were formerly under the rule of the British Empire, including the
United States, with the exception of Louisiana, which takes its model
from civil law, or codified decree, in the style of the original French
governors.

While judges develop the common law gradually, through the force of
their rulings in specific cases, it won't be found in any written form
comparable to statutory law. Common law is instead the common
consensus of legality and illegality that developed over centuries of
individual court rulings in Britain over roughly 800 years.

While the common law system is the departure point for the criminal
law in the United States, the United States Constitution gives legal
precedence to whatever statutory laws the various state and local
jurisdictions enact. At this time, most of the criminal law in the United
States is codified into statutes. However, many states still directly
recognize elements of the common law and, further, it is sometimes
necessary to go back to the common law to discover the intrinsic
meaning behind a statutory law. For example, a statute may say that
negligent homicide is punishable by one to three years in prison
without actually defining homicide. In this case, it would be necessary
to go back to the common law for the definition.

State legislatures are permitted to pass what laws they see fit, as long as
these don't contradict federal statutes, and local legislatures are
permitted to pass what laws they see fit, so long as they don't contradict
state or federal laws. Declaratory and remedial statutes are frequently
passed to reinforce, expand or restrict the common law in the myriad
jurisdictions of this country, and the legal landscape can vary
considerably from state to state and town to town. The strength of
common law system lies in its flexibility, and the group consensus of
judgement that it represents. Because the whole of common law is
modified slightly by every court ruling, it is believed to better represent
the hearts and minds of the people it seeks to govern.

1.2 OBJECTIVE AND PURPOSE

The objective of this research is to provide a complete view of the

various approaches used to study discuss the objectives, need,
significance and steps involved in the process of research by the jurists
and scholars around the world. The project aims at identifying the wide
range of approaches available for researchers to study the process of
research keeping in view the purpose of the research and the main
objective of it. The project aims at giving researchers an effective
method to study the subject and improve their technique and
understanding of the nuances of the subject.

1.3 SCOPE OF THE STUDY

A good researcher can widen the avenues of research for topics in law
and analyse them from different perspectives. Common law being a
dynamic subject can be studied according to the changing times and
therefore the approaches to study the subject are ever improving and
there is always a window for improvement. One can develop methods
which are flexible and transgress the rigid constructions established
through the times. The reliance on judicial opinion is a strength of
common law systems, and is a significant contributor to the robust
commercial systems and thus this topic has a wide scope of study.

1.4 HYPOTHESIS

While making this project, I went through various books, journals,

articles to explore this intriguing topic in detail. I got to know the
nuances of common law especially with reference to India. Embarking
on an exciting journey, I inculcated a lot of new facts and details about
law and its development in Indian context. The project enlightened me
with new knowledge about the historical and societal progress which
law has made through a span of centuries. I got to learn about the
common law system in detail which further strengthened my
understanding of law sparking new inquisitiveness in me to explore this
field further.

2. HISTORICAL BACKGROUND OF COMMON

LAW

The common law—so named because it was "common" to all the king's
courts across England—originated in the practices of the courts of the
English kings in the centuries following the Norman Conquest in 1066.
Prior to the Norman Conquest, much of England's legal business took
place in the local folk courts of its various shires and hundreds. A
variety of other individual courts also existed across the land: urban
boroughs and merchant fairs held their own courts, as did the
universities of Oxford and Cambridge, and large landholders also held
their own manorial and seigniorial courts as needed. Additionally, the
Catholic Church operated its own court system that adjudicated issues
of canon law.

The main sources for the history of the common law in the Middle Ages
are the plea rolls and the Year Books. The plea rolls, which were the
official court records for the Courts of Common Pleas and King's
Bench, were written in Latin. The rolls were made up in bundles by law
term: Hilary, Easter, Trinity, and Michaelmas, or winter, spring,
summer, and autumn. They are currently deposited in the UK National
Archives, by whose permission images of the rolls for the Courts of
Common Pleas, King's Bench, and Exchequer of Pleas, from the 13th
century to the 17th, can be viewed online at the Anglo-American Legal
Tradition site (The O'Quinn Law Library of the University of Houston
Law Center).

The doctrine of precedent developed during the 12th and 13th centuries,
as the collective judicial decisions that were based in tradition, custom
and precedent.

The form of reasoning used in common law is known as casuistry or

case-based reasoning. The common law, as applied in civil cases (as
distinct from criminal cases), was devised as a means of compensating
someone for wrongful acts known as torts, including both intentional
torts and torts caused by negligence, and as developing the body of law
recognizing and regulating contracts. The type of procedure practiced in
common law courts is known as the adversarial system; this is also a
development of the common law.

3. DEVELOPMENT OF COMMON LAW

3.1 Medieval English common law

The early development of case-law in the thirteenth century has been
traced to Bracton's On the Laws and Customs of England and led to the
yearly compilations of court cases known as Year Books, of which the
first extant was published in 1268, the same year that Bracton died. The
Year Books are known as the law reports of medieval England, and are
a principal source for knowledge of the developing legal doctrines,
concepts, and methods in the period from the 13th to the 16th centuries,
when the common law developed into recognizable form.

A view of Westminster Hall in the Palace of Westminster, London, early

19th Century.
In 1154, Henry II became the first Plantagenet king. Among many
achievements, Henry institutionalized common law by creating a
unified system of law "common" to the country through incorporating
and elevating local custom to the national, ending local control and
peculiarities, eliminating arbitrary remedies and reinstating a jury
system—citizens sworn on oath to investigate reliable criminal
accusations and civil claims. The jury reached its verdict through
evaluating common local knowledge, not necessarily through the
presentation of evidence, a distinguishing factor from today's civil and
criminal court systems.

Henry II developed the practice of sending judges from his own central
court to hear the various disputes throughout the country. His judges
would resolve disputes on an ad hoc basis according to what they
interpreted the customs to be. The king's judges would then return to
London and often discuss their cases and the decisions they made with
the other judges. These decisions would be recorded and filed. In time,
a rule, known as stare decisis (also commonly known as precedent)
developed, whereby a judge would be bound to follow the decision of
an earlier judge; he was required to adopt the earlier judge's
interpretation of the law and apply the same principles promulgated by
that earlier judge if the two cases had similar facts to one another. Once
judges began to regard each other's decisions to be binding precedent,
the pre-Norman system of local customs and law varying in each
locality was replaced by a system that was (at least in theory, though
not always in practice) common throughout the whole country, hence
the name "common law".

Henry II's creation of a powerful and unified court system, which

curbed somewhat the power of canonical (church) courts, brought him
(and England) into conflict with the church, most famously with
Thomas Becket, the Archbishop of Canterbury. The murder of the
Archbishop gave rise to a wave of popular outrage against the King.
Henry was forced to repeal the disputed laws and to abandon his efforts
to hold church members accountable for secular crimes (see also
Constitutions of Clarendon).

The English Court of Common Pleas was established after Magna Carta
to try lawsuits between commoners in which the monarch had no
interest. Its judges sat in open court in the Great Hall of the king's
Palace of Westminster, permanently except in the vacations between the
four terms of the Legal year.

Judge-made common law operated as the primary source of law for

several hundred years, before Parliament acquired legislative powers to
create statutory law. It is important to understand that common law is
the older and more traditional source of law, and legislative power is
simply a layer applied on top of the older common law foundation.
Since the 12th century, courts have had parallel and co-equal authority
to make law—"legislating from the bench" is a traditional and essential
function of courts, which was carried over into the U.S. system as an
essential component of the "judicial power" specified by Article III of
the U.S. constitution. Justice Oliver Wendell Holmes, Jr. summarized
centuries of history in 1917, "judges do and must legislate." There are
legitimate debates on how the powers of courts and legislatures should
be balanced. However, the view that courts lack law-making power is
historically inaccurate and constitutionally unsupportable.
In England, judges have devised a number of rules as to how to deal
with precedent decisions.

3.2 Influence of Roman law

The term "common law" is often used as a contrast to Roman-derived

"civil law", and the fundamental processes and forms of reasoning in
the two are quite different. Nonetheless, there has been considerable
cross-fertilization of ideas, while the two traditions and sets of
foundational principles remain distinct.

By the time of the rediscovery of the Roman law in Europe in the 12th
and 13th centuries, the common law had already developed far enough
to prevent a Roman law reception as it occurred on the continent.
However, the first common law scholars, most notably Glanvill and
Bracton, as well as the early royal common law judges, had been well
accustomed with Roman law. Often, they were clerics trained in the
Roman canon law. One of the first and throughout its history one of the
most significant treatises of the common law, Bracton's De Legibus et
Consuetudinibus Angliae (On the Laws and Customs of England), was
heavily influenced by the division of the law in Justinian's Institutes.
The impact of Roman law had decreased sharply after the age of
Bracton, but the Roman divisions of actions into in rem (typically,
actions against a thing or property for the purpose of gaining title to that
property; must be filed in a court where the property is located) and in
personam (typically, actions directed against a person; these can affect a
person's rights and, since a person often owns things, his property too)
used by Bracton had a lasting effect and laid the groundwork for a
return of Roman law structural concepts in the 18th and 19th centuries.
Signs of this can be found in Blackstone's Commentaries on the Laws
of England, and Roman law ideas regained importance with the revival
of academic law schools in the 19th century. As a result, today, the
main systematic divisions of the law into property, contract, and tort
(and to some extent unjust enrichment) can be found in the civil law as
well as in the common law.

3.3 The common law to the colonies and

Commonwealth by reception statute

A reception statute is a statutory law adopted as a former British colony

becomes independent, by which the new nation adopts (i.e. receives)
pre-independence common law, to the extent not explicitly rejected by
the legislative body or constitution of the new nation. Reception
statutes generally consider the English common law dating prior to
independence, and the precedent originating from it, as the default law,
because of the importance of using an extensive and predictable body
of law to govern the conduct of citizens and businesses in a new state.
All U.S. states, with the partial exception of Louisiana, have either
implemented reception statutes or adopted the common law by judicial
opinion.

Other examples of reception statutes in the United States, the states of

the U.S., Canada and its provinces, and Hong Kong, are discussed in
the reception statute article.

Yet, adoption of the common law in the newly-independent nation was

not a foregone conclusion, and was controversial. Immediately after the
American Revolution, there was widespread distrust and hostility to
anything British, and the common law was no exception. Jeffersonians
decried lawyers and their common law tradition as threats to the new
republic. The Jeffersonians preferred a legislatively-enacted civil law
under the control of the political process, rather than the common law
developed by judges that—by design—were insulated from the political
process. The Federalists believed that the common law was the
birthright of Independence: after all, the natural rights to "life, liberty,
and the pursuit of happiness" were the rights protected by common law.
Even advocates for the common law approach noted that it was not an
ideal fit for the newly-independent colonies: judges and lawyers alike
were severely hindered by a lack of printed legal materials. Before
Independence, the most comprehensive law libraries had been
maintained by Tory lawyers, and those libraries vanished with the
loyalist expatriation, and the ability to print books was limited. Lawyer
(later president) John Adams complained that he "suffered very much
for the want of books". To bootstrap this most basic need of a common
law system—knowable, written law—in 1803, lawyers in
Massachusetts donated their books to found a law library. A
Jeffersonian newspaper criticized the library, as it would carry forward
"all the old authorities practiced in England for centuries back whereby
a new system of jurisprudence [will be founded] on the high
monarchical system to become the Common Law of this
Commonwealth.The library may hereafter have a very unsocial
purpose.

3.4 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 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.

3.5 Challenges faced by Indian Legal System

The Judiciary interprets laws enacted by the legislature and dispenses

justice according to those laws. The judiciary must act independently
without fear or favour. The judges must be honest and men of courage
and integrity. However, it must be remembered that the Indian legal
system is a legacy of our colonial rulers and with the passing of time
many evils have crept into it and it fails to satisfy the aspiration of the
people. Hence there is urgent need of a complete overhaul of judicial
machinery.

Honesty and integrity of the Judges must be given top priority. The
judges should not merely be honest but also seem to be so. Besides
being honest, fearless and independent, they must also be learned and
wise. They must have sound legal knowledge, and must also know how
to apply that legal knowledge to the cases before them. They must be
able to separate the grain of truth from the chaff of falsehood. They
must be firm and above suspicion so that they may decide a case
fearlessly and give their judgment without fear or favour. They must
have a conscience so that they may tell themselves at the end of each
day that has done their best according to the light that is within them.

There is something in the very nature of the office of a judge and the
function he performs that demands that he should be a person of high
integrity, whatever may be the moral norms prevailing in other walks of
life. The judiciary has neither the power of the purse nor that of the
sword. Its most valuable asset is the confidence it inspires and the
respect it evokes for this capacity to redress the wrongs of those
knocking at the door of the Courts and to keep the scales even in any
dispute between the rich and the poor, the mighty and the weak, the
State and the Citizens, without fear or favor. This can only be ensured if
the judiciary is manned by persons who cannot be lured by pecuniary or
other temptations or by rewards or undue power and authority. Once the
image of the judiciary is tarnished because of the doing of some of its
members and its credibility goes down, the loss is not merely that of the
judiciary, the nation itself is deprived of the most stabilizing element in
the even flow of its life.

Once an impression prevails that justice is a purchasable commodity

and those who administer it can be tempted, the common man would be
left with no forum to look for redress of the grievances. There is
nothing which rankles in the human so such as a brooding sense of
injustice. We must remember that in the final analysis the people are the
judges and that every trail is a trail of our judiciary system also. Its
strength and weakness, its success and failure, its utility and credibility,
the respect would depend ultimately upon the way it satisfies the hopes
and aspirations of the people in quest of justice.

The problem of delay and the accumulation of huge arrears of cases

both in the lower-courts, the High Courts, and the Supreme Court have
assumed serious dimensions and invited a lot of criticism of the entire
legal system. The causes of this delay are many. There are lacunas
within the law itself of which clever lawyers take undue advantage and
seek adjournments on personal grounds, for the benefit of their clients.
Justice delayed is justice denied. The flaws in the legal system give rise
to unlimited frivolous suits, the purpose being not to seek redress but to
cause harassment to the opponent. This is one of the most important
causes of the accumulation of arrears.

Lok Adalats are being held constantly in some one chosen centre or the
other, but they touch merely the tip of the iceberg. The expansion of
judiciary has not kept pace in the lower courts, the Judges fail to assert
themselves either out of lethargy or fear of tussle with the lawyers
leading to strikes etc. The problem of delay must be faced boldly and
quickly both by reforming the legal system and by eliminating
extraneous factors responsible for such delay. This existing system must
be improved to meet modern requirements.

The Constitution of India provides for a very delicate process of

consultation between the executive and the judiciary in the matter of
appointment of judges through Supreme Court and the High Courts. A
qualitative improvement in judicial appointments can only be achieved
of all the constitutional functionaries involved in the consultative
process strive to attract and find the best talent of character and
dedication. Extraneous consideration such as caste, community,
religion, and politics must not prejudice the selection of judges.

But we must remember that the judicial system and legal machinery do
not work in isolation from society. We must have a non-political,
efficient, dedicated honest and upright judiciary which must have a
non-political, efficient, dedicated, honest and upright judiciary which
must be aware of its responsibilities and remain fearless. Only such
persons should be appointed as Judges, who enjoy the confidence and
trust of the nation. They must be allowed to function is such a manner
that the country is assured of fair and equal justice along with the
achievement of political, social and economic justice.
If judges with special acquaintance or competence or those who have
specialized in certain branches of law are allotted cases under that
particular branch of law, the time taken by judges who are not familiar
with the branch, specially of it is a specialized branch. Benches formed
of competent judges should be allowed to function for a reasonable
length of time and the judges constituting the Bench should know well
in advance when the Bench is to break, so that there may be no part-
heard cases left by the Bench after is it dismantled. This however
requires discipline on the part of judges themselves. They must sit in
time. They must not absent themselves from the Court simply because
there are certain rights to have some leave of absence. This a matter on
which the internal discipline of judges is very essential. They must
realize that they hold a high and dignified position in society.

The business of the courts should be so arranged as to avoid the

situation of old cases getting older and of new cases receiving priority.
Lack of proper listing listing and proper notice of new cases and the
given priority to old cases is a factor which contributes to the
accumulation of arrears and to mal-administration of justices. Matters
involving common questions of law must be grouped and posted
together for hearing before the same Bench not only to save the
precious time of court but to avoid conflicting decisions and ensure
uniformity in approach leading to certainly and continuity in the
progressive development of law.

The management of the court system should be modernized by taking

advantage of new technology. While computers have invaded all fields
of activity in the country and modern technological advances have
radically altered the working in offices, the judiciary has remained
outside the mainstream of this technological advancement. It is,
therefore, necessary that every High Court must have a computerized
system for keeping a catalogue of pending cases, a computerized library
index of its decisions to avoid conflicting decisions, and adequate
number of word processors, photo-copying machines and electronic
typewriters, a computerized micro-filming centre for maintenance of
record and a telex system connecting the Supreme Court with other
Courts. This is essential for inter-communication and interaction among
different courts. Judges can help by strictly adhering to the hours of
work, by exercising the caution and restraint in allowing adjournments
which are the bane of our present-day court proceedings, and restricting
oral arguments to the minimum by writing clear an concise judgments
and delivering them promptly within a short periods after the
conclusion of the hearing.

Members of the legal professions can and should also help. They must
discipline themselves in order to be effective ministers of justice. The
arguments should be prudent preparation before presentation in the
court either in pleadings or the advocacy. There is a tendency in our
country to rust to the court at the slightest provocation. If lawyers could
adopt a positive approach and strive to arrive at reasonable out of court
settlements, the time and expense of the litigants would be saved to a
great extent and the inflow of cases into courts would be reduced,
thereby facilitating expeditious disposal of pending cases.

To-day a large number of litigation in superior courts is concerned with

interim relief’s and interim orders. If we go by the number of interim
orders subsisting for years together without the matter coming up for
final hearing due to dilatory tactics, one gets the impression that the
majority in the profession have come to regard interim relief as final
reliefs. The number of frivolous and vexatious petitions being filed is
increasing by leaps and bounds. An overwhelming majority of special
leave petition filed in the Supreme Court are dismissed and yet there
are no sign of decrease in filing such petitions. Frequently
adjournments are sough upsetting the schedule of work. The
responsibility is to comply with the instructions of delays. Lawyers
frequently indulge in lengthy arguments before the court. There is need
to reduce the quantum of oral arguments prepared with great caution
and precision. Judicial time can be saved to a great extent and the
settlement of cases expedited.
 4. COMMON LAW IN INDIA

The current Indian lawful framework can be said to have a

contemporaneous presence i.e. with the approach of the English in
India. Amid the 1600s when the venturesome English East India
Company forayed into India on the scenery of exchanging intrigues
little did the Indian masses or even their future rulers realize that they
would shape the very establishment of the current Indian culture. This
change happened in different ways however the most significant of
those advancements was the setting up of another sort of legal
framework, which was basically in light of the basic law framework
followed in England. As the East India Company took control of
domains, rented to them by the Mughals for exchanging purposes, they
were anointed the ability to represent all persons having a place with
the English government and the organization inside of these regions as
per the English regular laws by the Crown.

After the organization won the skirmish of Plassey (1757), the Mughal
legitimate framework was gradually supplanted by the English lawful
framework. In the seventeenth-century office of the chief naval officer
courts were set up in the three administration towns of the British i.e.
Bombay, Madras, Calcutta. These courts got ward straightforwardly
from the organization and not the crown to choose common and
criminal matters. In the eighteenth century through an illustrious
sanction Mayors were set up, they got power from the crown. This was
the initial phase in the foundation of a uniform legitimate framework in
India. An arrangement of speaks to the Privy Council (an assemblage of
counselors to the crown) from such courts was likewise started. In the
late eighteenth century, the leader’s court was supplanted with an
incomparable court in the administration towns. “This was the principal
endeavor to make a different and free legal organ in India, under the
immediate power of the King. The Chief Justice and puisne Judges
were named by the King. This court had locale over common, criminal,
chief of naval operations’ office and ministerial matters and was
required to detail standards of practice and method. Requests from this
court lay to the Privy Council.” It was to be a court of record and was to
hold such purview as the court of Kings Bench had in England by the
regular law of England. Nearby affable and criminal equity was left
under a framework known as the “adalat framework”.

Later by the mid nineteenth century through another demonstration of

the crown i.e. Letter Patents Act of 1862, the High Courts were built up
set up of the Supreme Court in each of the administration towns and
were further settled in different areas also. These courts practiced the
same forces as that of the Supreme Courts and claims lay to the Privy
Council. The setting up of The Law Commission to survey the Indian
legitimate setup lead to the coding of the laws, for example, the Indian
Penal Code of 1862 with respect to criminal matters was drafted under
the stewardship of T.B Macaulay. The Evidence Act of 1872 and The
Contracts Act of 1872 were imagined by the same commission.
Accordingly every one of these improvements lead to the production of
a legal framework, which was transcendently in view of the Common
Law arrangement of England.

Common LAW: DOES IT APPLY IN INDIA?

The utilization of regular law has been all-encompassing in the Indian

setting; it has been cherished in the Indian lawful framework over the
space of two centuries by the English to the point that one can’t
dispense an individual character to Indian law. In this way it can be said
that normal law has been relevant here however in an alternate
configuration than that of England as the necessities and requests of the
Indian culture were unique in relation to that of the English. It is to be
discovered that a great part of the law arranged in codes we have today
were fundamentally gotten from the Common Law standards. The
fundamental statutes representing common and criminal equity are the
Indian Penal Code, 1860, Indian Evidence Act, 1872, the Code of
Criminal Procedure, 1973 and the Code of Civil Procedure, 1908. It has
as of now been examined how these laws appeared, one thing can be
said in regards to these enactments is that they have stood the test of
time with insignificant revisions. Codification of laws made the law
uniform all through the nation and encouraged a sort of lawful
solidarity in central laws. The Codes apply consistently all through the
country.

Another commitment to Indian legitimate framework by Common Law

has been the ill-disposed arrangement of trial. In this framework the
blamed is attempted to be pure and the weight is on the arraignment to
demonstrate past sensible uncertainty that he is liable. The blamed
additionally appreciates the privilege to quiet and can’t be constrained
to answer. The fact of the matter should rise up out of the separate
variants of the realities exhibited by the arraignment and the guard
under the steady gaze of an impartial judge. Both the gatherings have a
privilege to scrutinize their witnesses and the restricting side has a
privilege to test their affirmation by addressing them. . The judge
demonstrations like an umpire to see whether the arraignment has
possessed the capacity to demonstrate the case past sensible uncertainty
and gives the advantage of uncertainty to the denounced, his definitive
obligation being to claim the judgment with respect to the matter.

The arrangement of Precedents got from the Common Law too has
wide application inside of the Indian legitimate framework, a point of
reference in Common Law speech implies a formerly chose case which
builds up a guideline or rule that might be used by the court or a legal
body in choosing different cases that are comparative in actualities or
issue. At first the English judges and counselors directing and honing in
the Indian courts took after the choices of the courts in England, in this
way gradually the idea of points of reference came to be fervently taken
after inside of the Indian courts. This law has been conveyed forward in
the present day Legal framework as to the judgments of the Supreme
Court of India the Indian Constitution gives that “The law pronounced
by the Supreme Court might be tying on all courts inside of the region
of India.”Hence it can be said unequivocally that Common Law has
wide application inside of the Indian Legal fold the same number of the
components of this framework have been received and promote created
from that of The English Common Law System, despite the fact that its
application hasn’t been talked about in total and just the real standards
got from it have been examined.

In this manner it can be said that normal law follows back its starting
points to England and is essentially a technique for controlling equity,
which has fused diverse parts of the legitimate teaching method and
practice with the assistance of thoughts of laymen and the educated
throughout time. In the Indian connection the normal law at first was
connected for the accommodation of the English, so they could
represent their domains legitimately be that as it may, as they turned
into the overlords of India the basic law got to be regular for Indians.
There added to an advantageous relationship between the Indian
standard law and the regular law which brought forth the cutting edge
Indian lawful framework. Thus we can say India has a natural law as an
outcome of the regular law framers.
 5.CONCLUSION
In last few decades many revolutions took place on face of earth and they brings many
changes like they bring awareness among mases about their basic rights and rights require to
live with human dignity. Although, common law is not defined but its liabilities can be fixed
depending upon their nature and harm suffered to the defendant so that he can be brought to
the initial position. In common law intention is irrelevant but relevant in some cases.
Since then the judicial precedents have played a very important role in shaping Indian law.
Section 212 of the Government of India Act also provided that the law lay down by the Privy
Council would be binding on all courts in India. It also followed that every court was
absolutely bound by the decisions of the superior courts. Article 141 of the Indian
Constitution, 1950, provides “the law declared by the Supreme Court shall be binding on all
courts within the territory of India”. This is based on English principles, though by this
provision there is some departure from the English practice. In England, the house of Lords is
bound by its own decision but in India, the Supreme Court is not bound by its own decisions.
The Supreme Court of India, the highest judicial organ in India is free to change the law
which is laid down in an earlier case.

Concluding, it can be stated that the British Empire has left an imperishable contribution to
the enrichment of India’s Legal heritage. Apart from this but equally of importance is the fact
that with the ending of British Raj in India the time is ripe enough for us to make a beginning
of new understanding of India’s national peculiarities in the legal sphere.A study of India’s
ancient history will reveal the fact that what we now call “the unique principles of English
common law” was in fact originated in India. During Mediaeval and British periods, we were
made to forget our own “ancient Hindu period” which was our glorious past in various
respects. The principles of Indian philosophy, traditions, social and legal order, which formed
the backbone of our glorious past, can be correlated to meet the growing problems and new
conditions of India today. Let us not forget India still remains her intellectual treasure despite
the influence of English Common law.
 6.BIBLIOGRAPHY

BOOKS
1. Legal Methods, Legal Systems and Research by Prof. Tushar Kanti Saha
2. The Law of Torts by D.D Basu
3. The Common Law by Oliver Wendell Holmes
4. Understanding Common law legislation: Drafting and
Interpret/Bennion,F.A.R

ONLINE SOURCES

1. http://legal.xpertxone.com/common-law-in-india/
2. https://www.google.co.in/search?
ei=PWx1W6LEFYPI8wXTn4noAQ&q=common+law+in+india&oq=common+&gs_l
=psy
3. https://en.wikipedia.org/wiki/Law_of_India
4. http://www.open.edu/openlearn/ocw/mod/oucontent/view.php?id=68341&section=1