Legal History Course Outline

Course Teacher: Mr. Kapil Sharma

Email Id. Kapilsharma@nluo.ac.in

Description

The current legal system in India is the common law system established by the British East India
Company replacing the indigenous legal system. When the British Crown took over the
administration from the EIC in 1858, the Mayor’s Courts of the EIC were replaced by the
Supreme Court and the High Courts. Thus, this course traces the development of normative
orders emerging in the 19th and early 20th centuries in India. To discuss the evolution and
transformation of the legal system, firstly, the legal system of India in ancient times is examined.
This includes a brief examination of ancient scriptures on law like Manusmriti, Dharmasastra,
Arthasastra and Quran. Secondly, the course explores the transformation of the legal system with
the advent of British rule in India. Various legislations of British India are studied to understand
the role they played in governing British India. Finally, the evolution of the legal system of
Independent India is examined thoroughly. Some of the British era legislations are still in force,
like Indian Penal Code, 1860 etc. and thus the students are required to assess the relevance of
these legislations in contemporary times. It is pertinent for law students to have a conceptual
understanding of Indian legal history to truly understand the Indian legal system as it exists
today.

Course Objectives

• To make the students understand the context of the colonial laws in British India.

• To make the students relate to the role of law, legal institutions and legal system in
British India including the matter of jurisdiction and varied legislations across British India.

• To recall and understand the antecedents documents drafted either as legislations

governing British India or aspirational political documents in the framing of the Constitution of
India.
• To understand the influence and relevance of British laws in contemporary legislations.

Learning Outcomes

• The students can relate to the British India legislations and the reasons for their
enactment.

• The students can compare and contrast the role of law, legal institutions and legal system
in ancient India, British India and in modern times.

• The students can evaluate certain present-day legislations in the context of their
preparatory history and can evaluate the effectiveness of certain legislations in the context of
changed circumstances.

Course Structure

MODULE 1: INTRODUCTION TO INDIAN LEGAL SYSTEM IN ANCIENT INDIA

Indian administration of justice is considered the oldest judicial tradition in the world. No other
judicial system has a more ancient or exalted pedigree. This module provides a brief overview of
the administration of justice in ancient and medieval India. This module traces how the laws
were applied in those eras and how they have evolved with the changing times. the rule of law
and its application along with its transformation from ancient to medieval India. Specifically, this
module focuses on the transformation of laws from the ancient era to the medieval era. Further,
this module will explore Britisher's understanding of Indian laws, particularly, the writings of
British authors and their approach to Indian laws. For instance, Henry Mayne described the
Indian legal system as an apparatus of cruel absurdities. Students are required to debate on the
need of Britishers to replace the Indian legal system with theirs.

This module, thus, includes a discussion on the following:

Hindu Legal System

 Source of Law

 Types of Courts

 Interpretation of the Text of the law

  Administration of Justice

Muslim Legal System

 Source of Law

 Types of Courts

 Interpretation of the Text of the law

 Administration of Justice

 Application of Hindu law

MODULE 2: ADVENT OF BRITISH COLONIALISM IN INDIA

After learning about the laws in ancient India and medieval India, the students are introduced to
the beginning of British India’s legal system. This module traces the beginning of the British era
to better understand their legal system.

This module includes a discussion on the following:

 Charter of East India Company

 Acquiring territories and establishing settlements; Madras, Bombay and Calcutta

 Setting up of precedencies

 Effect of colonialism over India

MODULE 3: DEVELOPMENTS OF JUDICIAL, LEGISLATIVE AND

ADMINISTRATIVE INSTITUTIONS AND THEIR POWERS

After a discussion on the advent of British rule in India, the students are introduced to the various
legislations that was responsible for the governance of British India. This module thus explores
the gradual emergence of various legislations that confers powers on the Governor-General and
the Councils. This module also traces the administrative and legislative powers of the Company
as well. Apart from these legislations, this module throws some light on other important
legislations passed by the British Parliament during that time. With that, the students are also
introduced to the development of judicial structure in India during that time. This includes the
role of Crown’s Court, Mayor’s Court, Courts of Governor-General and its Councils, SC, Privy
Council and Federal Courts. This module also includes a discussion on Warren Hastings’
impeachment as well.

Thus, this module includes a discussion on the following:

 The Charter Acts of 1726, 1753, 1813,1833 & 1853

 Judicial Plan of 1772 & 1774

 The Regulating Act,1773

 The Act of Settlement, 1781

 Indian High Court Act, 1861

IMPORTANT CASES: Rukhmabai Case; Trial of Raja Nand Kumar (1775): Judicial Murder
Case; Kamaludin Case (1775); The Patna Case (1777-1779); The Cossijurah Case (1779-1780);
Radha Charan Mitra case; Andrews Hunter v. Rajah of Burdhwan; J.K. Gas Plant Mfg. Co.
(Rampur) Ltd. V. King Emperor; Mohindar Singh v. Emperor; Mata Prasad v. Nageshar Sahai
52 IA 398: AIR 1925; Krishnaswami v. Perumal Goundan.

MODULE 4: ENACTMENT, CONSOLIDATION AND CODIFICATION OF LAWS

This module explores the further contribution of the Britishers and in particular, examines the
enactments, consolidation and codification of laws which is generally attributed as one of their
significant contributions. This module also explores the role of various law commissions in
strengthening the Indian legal system.

This module includes a discussion on the following:

 Dual system of law

 Effort of British legislators: James Fitzjames Stephen, Thomas Babington Macaulay

 Law Commission reports

 Historical Aspect: Indian Penal Code, Indian Evidence Act, Transfer of Property Act,
Criminal Procedure Code
MODULE 5: CONSTITUTIONAL HISTORY OF INDIA

In this course, the students are introduced to the Constitutional history of India as well and this
module provides an overview of antecedent documents drafted either as legislation governing
British India or as aspirational political documents. This module will trace the coming together
of complex ideas shaped by British and Indian political leaders’ efforts which culminated in the
making of the Indian Constitution.

This module includes a discussion on the following:

 Constitution of India Bill 1895 (Swaraj Bill)

 The Indian Councils Act 1909

 The Government of India Act 1919

 Nehru Report 1928

 Karachi Resolution 1931

 The Poona Pact 1932

 The Government of Indian Act 1935

 Sapru Committee Report 1945

 Cabinet Mission Plan 1946

MODULE 6: REPEAL OF BRITISH STATUTES

Finally, the course ends with the repeal of some British statutes with India achieving political
independence from the British.

This module includes a discussion on the following:

 Periodical revision and repeal of statute law

 Obsolete British statutes

 Need for repealing obsolete enactments

 Legislative power to repeal: Indian Independence Act 1947 and Constitution of India
LECTURE PLAN

Modules Lecture Hours

MODULE 1: Introduction to Indian Legal 14

System in Ancient India

MODULE 2: Advent of British Colonialism in 10

India

Module 3: Developments of Judicial, 12

Legislative and Administrative Institutions and
their Powers

MODULE 4: Enactment, Consolidation And 6

Codification of Laws

MODULE 5: Constitutional History of India 12

MODULE 6: Repeal of British Statutes 6

Total Lecture Hours 60

Course Requirements

Attendance Policy

Students should mandatorily attend all the classes. They will require a minimum of 75% of the
total attendance to sit for the exam.

ESSENTIAL READINGS

 Jain, M.P., Outlines of Indian Legal History [Delhi, 1997]

  Singh, M.P., Outlines of Indian Legal and Constitutional History, [New Delhi, 2017]
 Kulshreshtha, V.D., Landmarks in India Legal and Constitutional History, [Lucknow,
2005]
 Nair, Janaki. Women and Law in Colonial India: A Social History. New Delhi: Kali for
Women in collaboration with the National Law School of India University [1996]
 Jois, Justice M. Rama, Legal and Constitutional History of India: Ancient Legal, Judicial
and Constitutional System [Delhi, 2001]
 Sreenivasa Murthy, H.V., History of India Part I For Law Students, National Law School
of India, Bar Council of India, [Eastern Book Company, Lucknow, 2008]
 Derret, Duncan M., Religion, Law and the State in India [New Delhi, 1999]
 Hamid, Abdul, A Chronicle of British Indian Legal History [RBSA Publishers, 1991]
 Mensky, Werner, Comparative Law in a Global Context: The Legal Systems of Asia and
Africa [Cambridge, 2006]
 Sharma, R.S., Aspects of Political Ideas and Institutions in Ancient India
[ MotilalBanarsidass Publ., 1996]
 Chandra, Bipan, India's Struggle for Independence [Penguin Books Limited, 2000]

ADDITIONAL READINGS

 Guha, Ranajit, A Rule of Property for Bengal: An Essay on the Idea of Permanent
Settlement [Paris, 1963]
 Kane, P.V., History of Dharmasastra, Vols. 1-5 [Poona, 1968]
 Political History of Ancient India, [New Delhi: Oxford University Press, 2006; seventh
impression; first published in 1923]
 Rizvi, S.A.A., The Wonder that was India, Part II: A Survey of the History and Culture of
the Indian Sub-Continent from the Coming of the Muslims to the British Conquest, 1200-
1700, [New Delhi, 1993]
 Saharay, H.K., Legal and Constitutional History of India [A Legal Study of the
Constitutional Development of India] [Calcutta, 1985]