HLCD

ARAVIND SUNDAR
21LLB22
 INDEX

MODULE PAGE NO.

Why Legal History Matters – Jim Phillips 3
Sedition 10
Syed Iqbal Ahmed sir’s module pre mid sems 32
Marc Galanter article 49
Imperial Ideology 52
SIA – Codification of Law 58
SIA – Age of the Mughals 68
SIA – Indian High Court Act, 1861 70
SIA – GOI Act, 1935 72
Untouchability and the Law 73
Major Legal Systems
 Legal System-
o It is a system engineered to ensure safety, security of subjects, rights of
the citizens etc. along with a means of enforcing the norms engineered
towards securing these goals.
o A legal system considers factors (sociological, political, economic etc.),
and designs its goals accordingly. Eg. Shankari Prasad Case, 1951,
which was related to the validity of zamindari abolition legislation. This
shows that the goals of a legal system are not merely drawn from the
black letter of the law, but are contingent on context.
o Evolves norms, rules, principles to achieve its goals.
o System, connotes a coherent whole animated by philosophy and ideas
which connect its parts so as to have a harmonious working
(jurisprudence is contingent on context?)
o Corpus of any legal system is its variable elements (changes in law), but
there are certain core concepts and methods of the system are its
constant elements.
o Take the instance of family law, in the European context, the cultural
notions around ‘family’ are different from those in India. So, the
understanding of family law is different, despite various amendments
from time to time. The crux of the law is based on the sociocultural
notion, not the black- letter of the law.

Somerset v. Stewart (1772) 98 ER 499

 Brief Facts- individual was captured by slave traders and transported to US,
escaped from his ship and landed in Britain, the captors tried to recapture him,
a writ of habeas corpus was filed to secure his release.
 Question of law- Whether the captors were doing something illegal as slave
trade was not explicitly illegal in Britain?
 Held-
o “Air of Britain was too pure for a slave to breathe”, thus the argument
that slave trade was legal was incorrect, as the institution of slavery was
presumed to be illegal in the political and legal climate.
o The legal justification was the principle that an individual’s freedom
was inviolable.
o Thus, freedom was inviolable and the exception has to be established
and justified by referring to the specific legal authority and not vice
versa.
 The judgement triggered the debate around the abolition of slavery in Britain,
and it culminated in 1833.
  On one level, the judgement shows how socio- political context affects
jurisprudence, and on another level, it shows how jurisprudence can affect
discussions and perceptions around a certain issue.

Dred Scott v, Sanford 60 US (19 how) 393 (1856)

 “Instead of raising the presumption that every man is free unless law is to the
contrary had held that liberty of property guaranteed by the due process clause
of the 5th amendment of the American Constitution disabled the legislature
from making slavery illegal as it violated the right of property of the slave
owner.”
 Note that the judgement shows how a different prioritization in values in a
society can influence jurisprudence on the same issue, UK- liberty, freedom,
USA- capitalist, inviolability of private property.

Types of Legal Systems

 Types- Religion Based, Civil Law, Socialist System, Common Law.
 Growth of India’s Legal System-
o Ancient Vedic Period  Bronze Age  Indus Valley Civilization
o Law was associated with philosophical discussions and religious
prescriptions for the masses.
o Legal thought was dominated by the Vedas, Upanishads, and
Philosophical schools (i.e., Samakhya, Yoga, Nyaya, Vaisheshila,
Mimamasa, Vedanta), this became the basis of law, and was influenced
by, and influenced Jain and Buddhist thoughts.
o Evolution of the concept of ‘Dharma’.

Dharma Shastras
 Code of righteous conduct, evolved to establish control over desires/ senses. It
covered all rules of righteous conduct at every sphere of human activity.
 Rules formulated or evolved meant to ensure peace and happiness for
individuals and society.
 Premised on a ‘duty- based’ discourse, as opposed to ‘rights- based discourse’.
 It explained how an ideal society should function.
 Covers-
o Duties of ideal householder
 Rules and obligations of four castes (varnas) + criticism
 Some common obligations across four castes
 Stages of Life-
  Brahmacharya (0- 25) (student)
 Grihastha (25- 50) (householder)
 Vanaprastha (50- 75) (forest- dweller)
 Sanyasa (75- 100) (renunciation from life)
o Laws and Legal Procedure-
 Raja Dharma (duties of a ruler)- again duty- based, not rights
based. Minimize human interaction- greater efficiency, better
governance.
 State Administration
o Laws of Punishment-
 Covers civil and criminal wrongs
 Defines Purposes of punishment
 Texts-
o Manusmriti (200 BCE- 200 CE)
o Naradasmriti (110 BCE- 400 CE): 1028 verses that covered forensic
sciences and references courts and judicial procedures
o Yajnavlakha Smriti (200 CE- 500 CE)
o Vishnu Smriti (700 CE- 1000 CE)
o Interpretative texts, digests, commentaries, legal opinions

Other Early Indian Legal Systems

 Wodeyar and Travancore Kingdoms were divided into States, further divided
into village- levels taluks, having Courts.
o A hobli, or a group of villages under Hobildar, had courts at this level,
similar to the panchayat system today.
o Local Councils had been setup to manage local affairs of the people.

Religious Legal Systems

 Islamic Law-
o ‘Ilm- ul- Yaqeen’ (refers to the absolute faith in the ‘existence of god’,
‘prophet as his messenger’ and ‘Quran as the holy book’.)
 ‘Ibadat’- Relationship with spiritual affairs, concerned with
personal welfare, spiritual obligations. ‘Mamlaat’- day to day
affairs and concerns, practical.
o Based on faith, sacred or divine law <> embraces duties.
o Totality of command <> regulate life.
o Law/ relgion are connected, a practice has to be understood in light of
Quran.
o Religious injunctions under Islam-
  5 times prayer, daily- Farz
 Drinking wine- Haram, or forbidden (the reason for banning
wine was that due to the wide prevalence of drinking in Arabia, it
was observed that, individuals were drunk even during prayers,
further voluntary intoxication (non- medical), was generally
discouraged).
 Additional Prayers during Eid- Mandub (not mandatory, but
encouraged)
 Smoking, gambling- Makruh, try to avoid
 Religion is indifferent to some things, such as Marriage (has been
referred to, in some contexts under ibadat, and in others, as
mamlaat).
o Important Terms-
 Difference between Sunni and Shia?
 After Prophet Muhammad’s death, the question of who
should take charge or guide the community arises. The
majority opinion favours the Prophet’s uncle, and old
colleague, Abu Bakr, but one group insists that Ali,
Prophet Muhammad’s cousin and son- in- law, should take
charge (Ali married Muhammad’s daughter, Fatima, and
had also assisted him to escape from Mecca to Medina).
Sunni- Majority opinion, Abu Bakr, Shia- Small faction,
Ali.
 Shias- Prophet appointed Ali (son in law, cousin),
successor- certain occasion
o First 3 Caliphs not entitled (Abu Bakr, Umar and
Usman)- rejected. Sunni Doctrine <> succession <>
depends upon consensus- determined by the
majority of the faithful at that particular point of
time.
o Usman- Quran gets framed into its present, book
shape.
o Ithna Ashari School <> Iran, Indian subcontinent
and Middle East
 Majority worldwide- Sunni’s <> Hanafi (followed by
majority, stricter interpretation).
 Later, four jurists, or schools of interpretation (Hanafi/
Maliki/ Shafei/ Hanbali).
 Meaning of Shariat?
 Meaning, ‘road or the path’. Legislation- Shariat
Application Act, 1937. Aims to ensure totality in
following Allah’s commandments in everyday life.
  Evaluates everyday conduct with respect to the
stipulations of the Almighty. Eg. Islam instructs people to
make wills immediately, in order to avoid property
disputes in the future.
 ‘Doctrine of duties’, or code of obligations (towards
neighbours, elderly, parents etc.)
 Some countries have established laws based on these
values, for instance, ban on community service in certain
countries (based on the principle of ‘israafe beja’, or
‘avoidable expenses’).
 Primary Sources of Islamic Law:
 Quran- word of God, as interpreted by the Prophet,
codified under Usman, contains 114 chapters and 6666
verses. Essentially encompass Rules of Human Conduct,
in all situations and contexts. Crucially, Islamic scholars,
Muftis, can only interpret the verses in the Quran, but
cannot add or subtract substantive matter.
 Sunnah and Hadiths- practices and conduct of the Prophet
himself, passed over generations, continuous usage in the
community.
 Ijma- consensus of opinion between Islamic legal scholars.
 Ijtihad is the mode of reasoning by which consensus was
reached, Qiyas- analogical deduction (rule of
interpretation).
 Clergy can also develop new modifications in the religion over
time, as they feel appropriate to the social context. For instance,
the encouragement towards marrying (which is not present in
Quran).
 Secondary Sources of Islamic Law
 Fatwas- Give their opinion on a particular matter, not a
primary source but instrumental in developing legal
principles.
 Legislations- Eg. Shariat Application Act, 1937
 Court decisions
 Customs
 Section 500- Section 509, IPC
o Muslim Criminal Law
 Crime against God- drinking liquor, adultery, apostasy.
 Crime against Sovereign- theft, robbery, robbery with murder.
 Crime against Private Individuals- murder and offences against
human body
  Before the disintegration of the Mughal Empire, Indigenous Legal Systems had
been prevailing, these systems broke down, and there was a vacuum in legal
governance. The central political authority broke down.
 Imp. Dates in this disintegration- 1707 (Aurangzeb’s death), 1739 (Nadir
Shah’s invasion), 1757 (Battle of Plassey), 1761 (3rd Battle of Panipat), 1764
(Battle of Buxar).
 They were gradually replaced by the post- enlightenment Legal Institutions
enforced by the British (Enlightenment: 1685- 1815).
 Types of Punishment under Muslim Law
o Kisa or retaliation
o Diya or blood money
o Hadd or specific penalty for specific offences
o Tazeer- Judicial discretion
o Siyasa- exemplary punishment
 The weakening of political authority at the Centre, post- 1707, leads to a
collapse in the operation of the legal system, and the system (wrt Types of
Punishment), begins to be grossly misused by the people.
 The British begin codifying a new statute between 1772- 1861, in the process
outlawing pre-existing norms.
 Rule of law- formulated by Dicey in 1882, Separation of Powers- Montesquieu
in 1747.

Historical Development of Civil Law

 6th- 11th Century- development of the Justinian Code, along with Canon/
Church Law.
 Derived from ius civile
 Developed between 11th to 16th Century, known as corpus iuris civilis.
 Civil and Canon Law shared legal thought
 Custom was the source, systematized scattered legal sources, principles of
civil/ natural law

Examples of the gradual development of legal principles

 Hogu Grotius, 1631, ‘Introduction to Dutch Jurisprudence’, reflects Roman and
Dutch customs- today known as the father of international law, was the basis of
the formulation of international law over the next 500 years.
 Austria’s Code of Joseph II, 1786 and Complete Civil Code 1811.
 France’s Civil Code (Napoleonic Code), 1804- codified administrative law
(refers to that part of a legal system which regulates bureaucracy,
administrative officials etc.). In contrast, Administrative Law has not been
 codified in India. It is essentially based on procedures/ principles affirmed by
the Judiciary in their judgements.

Common Law
 Law developed by Judges over a period of time.
 Was generally uncodified, along with some scattered statutes.
 Decisions based on precedents, based on the principle that it is unfair to treat
similar facts dissimilarly on different occasions.

Historical Development of Common Law-

 Norman Conquest- occurred in 1066, was the first attempt to consolidate
political, administrative power in Britain. This consolidation was followed b
the establishment of institutions of authority and justice. (William I, 1066-
1087)
 Under Henry II, various forms of legal action, including, writs, royal orders
were evolved. Specific wrongs and their corresponding remedies were
categorized. These principles became ‘common to the region’, i.e., ‘common
law’.
o Writs- orders issued by the judicial authority (which was then, the
King). Gradually they evolved into their present form- 5 writs (Habeas
Corpus, Certiorari, Prohibition, Mandamus, Quo Warranto).
 The origins of the ‘jury system’ can also be attributed to this period, the Court
which sat in London, sent individuals to the rest of the country to perpetuate
the legal system.
 1215 A.D.- Magna Carta or Great Charter- declared certain individual liberties
(included right to property, protecting trespass).
 Middle Ages (14th Century- 15th/ 16th Century)- Courts applied canon law, the
local urban/ rural courts applied the local customary law, the Maritime Courts
applied Roman Law. There is lack of uniformity in the principles and their
application.
 Rigidity in Application of Writs filed in the King’s Court-
o There were clearly defined parameters within which cases had to be
framed and filed, this meant that a vast majority of cases were lost on
technicalities.
o Oral evidence was disallowed, there was no power of enforcement/
punishment, absence of ‘trust system’, absence of remedies like
‘injunction’ etc.
 These issues created disaffection from the law, law was not meeting its
objective of ‘justice delivery’.
  To create an alternative to this inadequate system, an alternate Court, to bridge
the gap between the effect of the inadequacies of the law and fulfilling the
objective of justice, the Court of Equity or Chancery was established in 1474.
 These Courts applied principles of equity (which were more general, and drew
from sources beyond those of ‘common law’, such as principles of natural
justice, civil law etc.). The idea was to ensure a ‘just outcome’.
 1557 onwards, records of the proceedings of the Court of Chancery were
maintained, the principles which evolved through these proceedings were
eventually codified under the Judicature Act, 1873.
 Parallel Developments-
o 1615- Earl of Oxford’s Case
o 1689- Bill of Rights
o 1707- permanent check on the power of King
o 1723- 1780- Willliam Blackstone’s Commentaries on the law of
England.
 Growth
o Evolution of legal culture is contemporaneous to he development to
national legal systems, for instance, Civil Law countries share civil law
traditions, which have bee adapted to national context through national
legislations and customs.
o Imp. Cases-
 Case of Proclamation, 1610
 Emtick v. Carrington, 1765
o Gradually, the Indian legal system also gets influenced by English Legal
Institutions through colonization.

Doctrine of Equity
 Removed certain problem areas-
 Certain remedies were discovered- injunction, estoppel,
 General Principles/ Doctrines evolved-
 Equity in the Legal System-
o Article 142-
 Gives Supreme Court the power to exercise its jurisidiction and
pass order for doing complete justice.
 It addresses situations where the absence of specific legislation
can lead to manifest injustice. Eg, Vishakha Case, or where
manifest injustice may be cause as a result of legal procedure. Eg.
Bhopal Gas Tragedy.
 It retains public confidence, punishment for bad acts is certain,
even if procedurally inadequacies exist.
 Special and Extraordinary Power.
  Entity of ‘Natural Law’, which theoretically, should prevail over
the laws of the land.
 Deliver justice in exceptional cases without being hindered by
legal or bureaucratic red tape.
 Cases- ‘Irretrievable breakdown of marriage’- Ramesh Chandra
v. Saraswati, 1995, 2 SCC 7;
o Section 482, CRPC
 “Nothing in this Code shall be deemed to limit or affect the
inherent powers of the High Court to make such orders; as may
be necessary to give effect to any order under this Code or to
prevent abuse of the process of any Court or otherwise to secure
the ends of justice”.
 Quashing of FIRs
 Criticism of Section 482: FIRs are filed with political ulterior
motives.
o Contract Law: Indian Contract Act, 1872; Indian Trust Act, 1882; TPA,
1882; Specific Relief Act, 1963; Code of Civil Procedure, 1908.
 Conditions of Voidability: Fraud, Coercion, Undue Influence,
Misrepresentation, which evolved through the adoption of the
principles of ‘equity’.
o Section 151 CPC, 1908: Gives power to the Courts to extend their
jurisdiction to prevent abuse of the process.
o Section 519 CPC, 1908: Gives autonomy to individual to file cases in
the area where he resides also.
 Importance of the principle of ‘equity’-
o Conservation of the principles of natural justice
o Retain public confidence in the judiciary
 Thus, a legal system comprises of Legislation, Established Procedures and
General Principles of Equity.

Influences on Common Law

 From the Socialist Legal System
o Obligatory on the State to provide for certain things, such as Education
(Right to Education in India).
o Article 39A- Provides for Legal Aid, which shows that the adversarial
system is tilted against the victim.
o Legal Services Authority Act, 1987- NALSA established in 1995.
o Article 41, DPSP- obligation on the State for providing employment,
education.
o Article 43, DPSP- living wage etc. for workers. State shall endeavour to
secure by suitable legislation or economic organization to all workers,
 agricultural, industrial or otherwise, work a living wage, conditions of
work, ensuring a decent standard of work etc.
o Fundamental Duties, Article 51A, 1976, include, promotion of scientific
temper etc. imp. - promote harmony and the spirit of common
brotherhood amongst all the people of India transcending religious,
linguistic or sectional diversities; to renounce practices derogatory to the
dignity of women (added later). The concept of fundamental duties itself
has been derived from socialist states- Russia, China, Korea etc.
 Criminal Justice System-
o Framework- the system is necessarily accused centric (is it?)
o Justice or truth debate- retributive justice.
o Necessity for pro- active role of judges? - should the adversarial system
be modified to include pro- active role, in order to increase conviction
rates.
o Essentially, that the inadequacies of the system are very well evident to
the State itself, who themselves hesitate from using procedures, and use
third parties.
o Refer Justice Malimath Committee Report, 2003
 In an adversarial system, it is an unfortunate tendency for the role of judge to
be limited to passive umpire- Ram Chander v Haryana, this limits the
effectiveness of justice- delivery, thus the judge should take an active,
intelligent role by inquiring into evidence etc.

J. Malimath Committee
In the anxiety of remaining neutral, judges remain passive spectators during trial.
Suggests borrowing certain features from inquisitorial system of investigation.
Judicial Magistrate supervises investigation.

Inquisitorial Elements in Criminal Justice System

 S. 173 (8), CrPC 1973- nothing in this section shall be deemed to preclude
further investigation in respect of an offence after a report under sub- section
(2) has been forwarded to the Magistrate, whereupon such investigation, the
officer in charge of the police station obtains further evidence, oral or
documentary, he shall forward to the Magistrate a further report or reports
regarding such evidence in the form prescribed.
 S. 313: In every inquiry or trial, for the purpose of enabling the accused
personally to explain circumstances appearing in the evidence against him, the
Court:
o (a) may at any stage, without previously warning the accused put such
questions to him as the Court considers necessary
 o (b) shall, after the witnesses for the prosecution have been examined and
before he is called on for his defence, question him generally on the
case:
 S. 165: Judge’s power to put questions or order production-
o To discover or to obtain proper proof of relevant facts, ask any question
he pleases.
o In any form, at any time, of any witness, of the parties, about any fact
relevant or irrelevant.
o And may order the production of any document or thing and neither the
parties not their agents shall be entitled to make any objection to any
such question or order.
o Neither parties nor their agents shall be entitled to make any objection to
such question or order
 S. 358- A person who was groundlessly arrested, is entitled to compensation.

Summary
 Legal System- recognizes legal principles, norms etc. to protect the subjects
and ensure a certain standard of living for the subjects.
 Recognises Rights + Modes of Enforcement.
 May prescribe duties.
 Contingent on social, economic and political conditions.
 Changes in law may happen but the concepts and methods of the legal system
remain in the same.

Hammurabi’s Code of Justice

 282 principles, codified natural law norms like, strong should not harm hthe
weak etc.
 Interestingly, codified rights of widows and orphans in 1792- 1750 BCE, which
started being recognised in India only after Widow Remarriage Act, 1856.

Challenges and Approaches

 A legal system is oriented towards certain purposes, or ideals, which it strives
to achieve, implement (purposive enterprise). For the Indian Constitution, this
has been given in the Preamble, i.e., Equality, Justice, Welfare etc.
 A legal system connotes a system of interrelated legal norms with institutions
for making, and enforcing these norms in a constitutional framework, for
instance, article 20, 21, and 22 are given under the FR chapter for two reasons-
o To develop their constitutional legitimacy.
 o To emphasize their interrelatedness.
 Wolfgang Friedman- Legal Theory.

State in the Legal System

 Role- Protector, Regulator, Facilitator.
 Ensure- Governance and Redressal Mechanisms (wrt rights).
 Challenges- Privatization and Globalization, devolves the State’s obligations as
a welfare state to private orgs. (implementationary challenge?)
 Measuring Compliance to the purposes of the legal system- ambiguity in
metric, how to do it? The legal system needs to evolve in- built mechanisms to
restrict abuse and misuse of sovereign power.
 Further Challenge- poor functioning of orgs. Such as NHRC, SHRC, CVC,
Lokpal- impedes the fulfilment of the outlined purposes of the legal system,
and its objective of ensuring governance and redressal mechanisms.
 The state has to ensure its relationship with the individuals by protecting their
interests and rights. Eg. Land Acquisition Acts- towards equity in landholding
Compliances (related to point 3 above, how to measure the performance of the State
with respect to the purposes of the legal system)
1. Constraints on government power
a. Doctrine of Sovereign Immunity, provides government a sphere of
influence in which its power cannot be constrained or checked, there are
debates over this, underlying the need for establishing constraints. This
example shows why constraints need to be established.
b. This is also a means of evaluating a legal system.
c. Constitutional limitations- eg. State has the power to preventively detain
individuals, however, this has been constrained by
2. Removing and recourses to corruption
a. Indian legal system performs poorly on this aspect, the CVC does not
have a head etc.
3. Open Government
a. RTI, there is limited culture of public reasoning and debate.
b. Greater public discourse is required.
c. Usage of info. Technology to improve transparency, usage in e-
tendering, online applications. This reduces scope for
4. Fundamental Rights Protection
a. Constraints restricting govt, from violating FR.
b. Eg. CEDAW
5. Order and Security
6. Regulatory Enforcements
a. Labour Regulations, Consumer Acts
 7. Civil/ Criminal Justice
8. Informal Justice System
a. Article 40- setting up of village panchayats
b. 73rd Amendment, panchayats added in Art. 243 and Art. 243 A.
c. Compliance to the purpose of informalizing justice, increasing
accessibility to justice in remote areas of the country, speedy justice. Eg.
Shariat Courts in Bengal, Bihar, Odisha operating parallelly with the
formal justice system.
Article 2, CEDAW (Convention to End Discrimination Against Women), imposes an
obligation on member states to end discrimination
There are three metrics to inquire into the extent to which a legal system of a State is
discharging its obligation to end discrimination-
1. Legislative Framework- i.e., whether there is legislation towards this purpose.
Eg. In India, RTE in FR. Dowry Prohibition Act, 1961; Indecent
Representation of Women Act, 1986; PCP NDT Test Atct, 1995; Prohibition of
Child Marriage Act, 2006; Post- Nirbhaya amendments to IPC in 2013=> this
forms the legislative framework wrt CEDAW.
2. Systematic Interventions and Initiatives- interventions like Beti Bachao Beti
Padhao. Eg. Nirbhay Fund, 2013 provided to State Governments by the
Minsitry of Wimen and Child Development to facilitate interventions and
initiatives for furthering gender equality. Swadhan Greh- district housing for
women, specifically. Having a women desk in every police station.
3. Judicial Action- jurisprudence on gender equality. Eg. Valsamma Paul v UOI
[Cochin University], 1996, SC justified its decision on the basis of intl.
covenants for the first time; Shakti Vahini v Union of India, 2018, PIL filed
before SC to issue guidelines to khap panchayats wrt the way they dispensed
justice, particularly in women- related disputes.
These metrics can be used to evaluate a legal system’s compliance with the above 8
frameworks also.

Market and the Legal System

1. Importance of the Commercial World- issues which have commercial
importance find their way to be addressed in the legal system. Further, a key
component of revenue generation and economic stability are market forces. So
legal system needs to adapt itself to facilitate constructive harness of these
forces i.e., how well we facilitate the growth of businesses and industries,
influx of foreign investment.
 2. Regulating inputs of businesses (with a view to facilitate growth of
businesses)-
a. How easy is it to acquire land.
b. Providing of raw materials.
c. Pollution Control
d. Accessibility to, and efficacy of, public utility services.
e. Examples- Competition Act, 2002 (replacement of MRTP Act). MRTP
prevented monopoly, whereas Competition Act, 2002 was focussed on
Unfair Trade Practices (which may also give rise to monopolies).
RERA- Real Estate Regulatory Authority, Act, 2016- focussed on
improving transparency.
i. Energy Conservation Act, 2001- regulating privatisation in
energy market.
ii. Commercial Courts Act, 2015 – fast- track dispute resolution.

3. Outputs generated give rise to issues-

a. Modes of Resolution- litigation, ADR (Arbitration Conciliation Act,
1996, s89 CPC).
4. Process of Business-
a. Legal System has to adopt itself wrt changes in the process of business
itself.
5. Compliances of International Treaties- Treaties like GATT (General
Agreement on Trade and Tariffs)- domestic laws and regulations have to be
modified to comply with the requirements in treaties like these.

Third Sector- Legal System

1. State’s slow withdrawal from welfare acts-
a. Privatisation of healthcare, education, social welfare.
b. CSR- corporates engage in welfarist functions in return for which they
get tax rebates.
c. Organisations like Tata Trusts etc.
d. Support during natural calamities like disasters from private
organisations.
2. Service delivery areas-
a. This sector has remained underdeveloped in India.
b. Therefore, private trusts are needed to bridge this gap.
c. Creating structures by which individuals can donate huge money to the
State in order to further social welfare, however this has been plagued
by corruption, inefficiencies by the State.
d. In contrast, US and UK have much better charitable endowments
structures, like the Charitable Endowments Act, 1964.
Family Life: Legal System
Contextually, Indian notions of family life are different from the West in terms of
divorce, spousal relations etc. So, Legal Systems will respond to this context.
1. Inter- spousal and inter- generational relations:
2. Idea of socio- economic, emotional support
3. Elements of Justice and Fair play
4. International Compliances-
a. UDHR- 16 (1), 16 (2), 16 (3)
i. 16 (1)- men and women of full age irrespective of nationality,
religion etc. have the right to marry and have a family.
ii. 16 (2)- Marriage shall be entered into only with the free and full
consent of the intending spouses.
iii. 16 (3)- The family is the natural and fundamental group unit of
society and is entitled to protection by society and the State.
b. ICSR- Article 10- State should take into consideration the interests of
children i.e., the State should evolve child- protection mechanisms as a
contingency for when dissolution of marriage occurs.
c. ICCPR- Article 23- States Parties to the present Covenant shall take
appropriate steps to ensure equality of rights and responsibilities of
spouses as to marriage, during marriage and at its dissolution. In the
case of dissolution, provision shall be made for the necessary protection
of any children.
d. CEDAW- Article 16- States Parties shall take all appropriate measures
to eliminate discrimination against women in all matters relating to
marriage and family relations and in particular shall ensure, on a basis of
equality of men and women: equal duties, equal rights in matters of
adoption and guardianship etc.

Reflections (what does the legal system consider to regulate families)

1. Idea of socio- economic, emotional support- how do you give it?
2. Inter- spousal and inter- generational relations- s.125 CrPC- protection to
elderly, Domestic Violence Act.
3. Elements of justice and fair play
4. Linked with religious communities
5. Issues of gender bias and gender equality
6. International compliances and standard settings.
Historical Perspective on Private Entities contributing to Social Welfare
1. Charity as a duty, this was a religious obligation earlier, built around the idea of
a conscious human being.
 2. Practiced in all religions
3. The field for this was diverse, it involved, health, education, poverty
eradication programmes, animal welfare, cultural promotion etc.
Framework for Trusts
1. Society Registration Act, 1860- registration of societies, RWAs. These orgs.
Have to comply with the regulations stipulated over here, i.e., hold elections
etc.
2. Religious Endowments Act, 1863- deals with regulation of land allocation,
procedures for regulating inflow and allocation of money – introduced by the
British to regulate the running of religious institutions. Eg. Bodh Gaya Temple
etc.
3. Indian Trust Act, 1882
4. CPC, 1908- s. 92 and s. 93- power given to the Civil Courts to see and decide
whether the purpose set out while setting up that trust were followed or not.
5. Constitutional Perspective-
a. Article 26- subject to public order, morality, health, every religious
denomination or any section thereof shall have the right to-
i. (c) own/acquire movable/immovable property;
ii. (d) administer such property in accordance with law.
b. Schedule 7- Concurrent List
i. Trust and Trustees. Entry no. 10
ii. Institutions, Charitable and Religious endowments and religious
institutions. Entry no. 28
iii. Motivation- so that both the Centre and State govts. can govern
and regulate these trusts.
6. International Perspective
a. Preamble of ICESR, 1966-
b. A. 1.2 (every individual has the right to dispose of his property in
whatsoever manner he wishes), and 13.4 (bodies and individuals can
establish educational institutions for the cultivation of human
personality and cultural conservation) of ICESR.
c. UNGA
Areas of Concern
1. Triangular Relationship- person donating, trust and the State.
2. Common Problems-
3. Proper institutional framework is lacking?
Sampradan Indian Centre for Philanthropy 2004
Model 1- maintain status quo (Adopt certain modifications to status quo). This means
performance can be enhanced by adopting certain recommendations within the current
framework to facilitate transparency, better compliance regulations.
Model 2- Create a functionally enhanced Charities Directorate in IT department, in
order to centrally monitor money flows. IT department would have expertise and
knowledge.
Model 3- Create a new Charities Directorate-
1. Governing body, with professional staff, general functioning such that
efficiency increase,
2. Governance by providing trustees with information and advice.
Model 4- Charities Commission UK- Model
1. Before availing of financial benefits, like tax rebates, demonstrate how work
will benefit public.
2. Efficiency of public services (prove lack of it- i.e., need)
3. Conflict resolution + reconciliation- ground for establishing charities.
4. Promotion of religious harmony and diversity.
5. Community development on new grounds.
 MARC GALANTER CLASS NOTES

Marc Galanter’s Argument

The major argument of Marc Galanter is that though India has witnessed 4 major political traditions,
i.e., Hindu rule/ancient Vedic rule, Muslim/Mughal rule, British colonialism and post-1947 democratic
regime, none of these regimes supplanted their predecessors. Important elements of the previous
tradition were carried on into the successive regime. The major legal character of the realm of law
relatively stayed the same. The elements of religious personal law survived each supplantation and
continues to be used in today’s legal system.

Ancient Vedic Rule and the System of Castes/Varnas

Ancient Vedic rule was based on custom-based law. Post 500BC, there was a codification of law into
several smritis, shastras etc. The major principle in the Dharmashastras was karma, i.e., your actions
would decide the justice served to you. When we see it through the principles of justice today (liberty,
equity, fraternity), we can see that the text was somewhat primitive in terms of achieving justice.

There was a vertical hierarchy in society which divided communities and also played a role in deciding
punishment. The four varnas were seen in society and occupations were divided using the same
system. The first 3 varnas were considered “twice-borns” and could study the Vedas.

 1st varna (Brahmins) was involved in the gaining of knowledge.

 2nd varna (Kshatriyas) used to participate in wars.
 3rd varna (Vaishyas) consisted of tradesman and businessmen who would make money for the
state.
 4th varna (Shudras) were engaged in serving the first three varnas.

The perpetual problem of this varna system was the lack of inter-mobility b/w communities. Birth was
the determining factor for one’s occupation. There was also a 5th category that wasn’t even considered
a part of the varna system. People belonging to the 5th category were considered subhuman and lived
outside the city.

Vedic India had some form of court system. While it wasn’t as concrete and systemic as the modern
judicial system, it still did exist. Two judicial systems existed in Vedic India:

 The formal court system which was a royal court administered by the king. He was bound by
the advice of the priests
o Prad Vivaka which was the court of the Chief Justice
o Inferior courts which were mobile courts that travelled around to deliver justice
o The appellate system was as follows: inferior courts –> Prad Vivaka –> royal court
 ADR: Puga was the highest level of ADR, followed by Sreni at the district level and then Kula
at the clan level. ADR also had a similar appellate system.

The British manipulated the caste system to turn Indians against themselves. The Indian constitution
looks at ideas of formal equality and substantive equality. It is based on the principle of “equals should
be treated alike while unequals should be treated alike” to ensure a level playing field for all citizens
and to achieve a more nuanced version of substantive justice. The constitution envisages that there
are historically alienated communities that have been denied access to resources as efficiently as
other communities that have been historically trained to access such resources. The state gives them
affirmative opportunities via institutional assistance to create a level playing field and allow historically
marginalized communities to access resources in an equitable manner.

Stigma does not go away even if formal equality has been guaranteed by the institutions. For e.g.,
manual scavengers, who generally belong to the lower castes, have been rehabilitated into taking up
better professions. However, due to the lack of acceptance, they have to return to their previous job.

The practice of casteism is generally undertaken by the upper caste. It is their duty to unlearn their
discriminatory practices and the onus is not on the lower castes to reduce the victimisation of
themselves.

The transformation from Vedic Rule to Mughal-Muslim Rule

When the Islamic invasion took place in India, the Mughals were very keen on creating good
administrative institutions in India, rather than actually governing India. Even the administrators were
initially focused on giving land titles only to the upper castes/royals. Administration systems were
created after judging the needs of that period. Royal courts would administer Muslim (sharia) law for
the Muslim population, while not disturbing the existing Hindu court systems that administered Hindu
law (dharmashastras). Islamic law wasn’t hierarchy based; hence it was easier to convert the
downtrodden Hindu castes to the Muslim religion.

The Mughal rulers were not interested in codifying personal law. Hence it was based on the customs
and interpretations of religious beliefs. Compare this to modern Indian law, wherein codification of
personal laws occurred through the religious statutes present today. When we raise the argument
regarding the UCC, one should understand that codification of religious personal law happened at a
very late time, much after colonization.

Medieval period court system which was mostly applicable for the Muslim population):

 Village level:
o court of village panchayat: petty civil and criminal matters without any clearly
delineated appellate recourses.
o court of zamindar (revenue and revenue-based-criminal matters)
 Pargana level (pargana is a regional conglomeration consisting of a group of villages)
o One court dealt with civil and criminal cases and had original jurisdiction over the
same.
o The Qazi court dealt with civil and criminal cases. The main officer was the district
Qazi.
o Kotwal’s courts dealt with petty cases
o Amil-e-pargana courts dealt with revenue cases
 District/Mofussil level: a proper judge can be seen (district qazi)
o Fouzdar Adalat dealt with criminal matters that dealt with the security of the district
and riots-related cases
o Kotwali courts dealt with petty cases
o Amal guzari katchari courts dealt with revenue matters
 Provincial level
 o Governor’s court aka Adalat-e-Nazim-e-Suba: the nazim/governor presided over this
court
o Original jurisdiction over all civil and criminal matters
o There was an informal appellate jurisdiction that it enjoyed.
o From the governor’s court, cases went to the Emperor’s Court.
o Chief Qazi’s court/Qazi-e-Suba’s court
o Dewan’s court i.e., the revenue officer’s court.

At each level, there were various officers that dealt with various cases in civil, criminal and revenue
matter. A structure was present without any appellate connection due to the lack of central law
governing the conduct of each court level. The vakil system (advocacy system) was introduced in the
medieval period. This helped ensure access to justice via ample representation.

Mughal rule to British Rule

During the colonial period, there was a lack of understanding regarding the diversity in religious
personal courts and the caste based Hindu criminal law systems. Hence, they did not attempt to
intervene in the practices of the local population and focused only on increasing trade. To create an
English settlement, English law was required and so in 1600, the EIC signed a charter with the Crown
to apply English law to the English people. Through the charter, in 1661, they tried to enter the
administrative institutions, not to rule the kingdoms but solely to increase trade.

Slowly and gradually, the EIC established an administrative system solely to increase revenue via
creation of a taxation administration to collect taxes.

When Hastings came in, he refined and reformed the medieval court system by connecting the courts
and laying an appellate structure via the Hastings’ reforms. When the Britishers came to India, they
dismantled the religious court system but continued to refer to the Hindu and Muslim religious
scriptures to lay down the law.

Over a period of time, codification happened. Britishers weren’t interested in creating a uniform law.
They were interested in maintaining the system from Hastings’ period. Cornwallis began codification
of law. By 1772, the Supreme Court was formed even though the British weren’t willing to intervene
in the religious court interpretations offered by maulvis and shastris. This was done to avoid resistance
from the Indians and start a gradual evolution in society.

Sophy asks: “Is it time to move towards a uniform civil code that cancels out the systemic injustices
that are carried out against women?”
 THE IMPERIAL IDEOLOGY
In the sixteenth century, the English began to emerge as the 'new Romans', who believed that they
had the task of civilizing all the uncivilized peoples. The British began by civilizing the West, i.e. America
and the West Indies ('the first empire'), and once those had become civilized, they moved on the
Orient i.e. Asia and Africa ('the second empire').

The article critically discusses the concepts of hegemony, paternalism of the British Raj and
orientalism.

Causes of the rise of imperialism in Britain

 One of the reasons why the ideologies of imperialism and colonialism took root in Britain was
the feelings of pride and patriotism associated with the glorified idea of having vast overseas
territories. The Brits took pride in having colonial possessions, and this was one of the reasons
why they pursued a policy of conquering and ruling foreign land.
 There was also a wider acceptance of using military autocracy, racial superiority and violence
as tools for colonialism.
 In the post-Enlightenment period, the British began to consider themselves modern and
civilized. The Enlightenment era infused in the Europeans a sense of humanism and since it
was closely associated with the scientific revolution, the British began to consider themselves
intellectually superior and modern compared to “uncivilised” countries.
 They considered it their duty to civilise people by conquering their territories.
 British justification for territorial expansion: they possessed the best administrative practices
and modern principles of justice, equality, good conscience and liberty, which were to be
spread around the globe.
 There was a belief in the Occident that the Indian civilization, while having a glorious past, had
now degenerated. They saw themselves as inheritors of a decayed system, who were
responsible by virtue of being 'enlightened' and 'civilized' to revive it.
 Sub-imperialism was the policy by which agents or servants, or some authority under the
actual imperialist, ruled over the colonized state on behalf of the imperialist. For example,
from the sixteenth century up until 1858, the East India Company (hereafter referred to as
EIC) ruled over India, ruled over India, although it was considered to be a colony of Britain.

Orientalism

 Developed by Edward Said, Orientalism is a western method of restructuring and asserting

authority over the Orient (the eastern countries, such as India, China, Middle East etc) to
civilise the backward classes.
 The West associated knowledge with power, created faux knowledge about the Orient in the
Occident, superimposed it on the colonized country as well as in the Occident itself.
 It was also a school of thought among some British administrators that India should be ruled
according to its own laws and customs.
 Edward Said argues that the main objective of the study of Indian culture and literature by
Occidental scholars was to legitimize the power of the colonial state. By analysis of ancient
Indian text and culture, the British defined Indian 'tradition' in a particular way which came to
be accepted as authentic knowledge.
  Thus, Orientalism was based on imposing pseudo-authentic knowledge on the colonized state
as legitimate in order to grant legitimacy to the colonial rule itself.
 Some scholars like Eugene Irschick counter Said’s arguments by arguing that the knowledge
produced by the Western scholars was done in collaboration with Indian informants. And
wasn’t imposed by the British. However, it must be noted that although Indians were included
in this collaboration, the final word as to what construed as 'authentic' information rested
with the British.
 But even Irschick could not deny that the main reason for British interest in Indian culture and
tradition was to further their colonial objectives. Orientalism produced a knowledge of the
past to meet the needs of present i.e., “to service the needs of the colonial state”

Orientalism in practice

 In the early phase of the EIC's government under Warren Hastings, the basic principle was to
rule the conquered people by their own laws in an effort to legitimize their rule, and for this
they stuck to enforcing the indigenous laws of the natives.
 The government of the EIC ruled as an 'Indian ruler'. They recognized the Mughal emperor,
minted coins in his name, used Persian as the official language and used Hindu and Muslim
law in the courts.
 The British attempted to reintroduce the older systems and heritage, while maintaining their
control over the diwani rights.
 Lord Clive himself advocated a policy of double government, under which the criminal justice
system was to be left in the hands of the native rulers, while the civil cases were to be handled
by the Company.
 There was also an urge to know the culture and tradition of the Indian people, as is evident in
the works of Sir William Jones. He studied Indian languages to familiarize Indians with the
richness of their own culture and literature, and by drawing connections between Sanskrit
and ancient European languages such as Greek and Latin, he infused in them a sense of
antiquity familiar to that of the classical West.
 The agenda of freeform expansion was cleverly executed through an approach to create a
knowledge structure by administering academic orientalism through the newly created
institutions.
 This policy of least intervention, however, began to wane gradually as the EIC became involved
more deeply in the public administration and the process of Anglicization of the administrative
structure began.

The Process of Orientalism

Orientalism, therefore, boils down to the creation of figures, transfigures and contra figures- there is
an artificial creation of notions of culture, economy and power relating to the orient by the occident.
It consists of a process, which was made possible by reverse acculturation, of:

 Mobilization of consent- in order to establish their power for the long run, the colonist
mobilize consent through artificial means
 Eradication of dissent- they also actively prevented the natives from coming in contact with
ideas of freedom and liberty
 Creation of patriotism-by fuelling feelings of pride about India's past
Reverse Acculturation

 Usually when a colonial state is ruled by an imperial state, the trend is toward radicalization.
However, in the case of India, the reverse happened, and the trend leaned toward embracing
the past.
 Since the British wanted to legitimize their rule in India, they began a process of reverse
acculturation. It familiarized the British with the customs and traditions of India, which
enabled them to assimilate the native laws into the colonial society so as to administer it even
more efficiently.
 After the French Revolution, the colonists were very concerned about the dissemination of
liberal ideas. The British did not want the Indians to interact with foreign ideas. Although they
established a number of universities in India, the education imparted in these was related the
Indian culture and Indian civilization and not western or liberal ideas.
 Reverse acculturation was therefore a deliberate attempt by the British to prevent Indians
from coming in contact with western liberal ideas.
 There are other reasons also as to why the British decided to subject the Indian colonial society
to reverse acculturation. Thomas Trautmann argues that by drawing a kinship between India
and Britain going back to the classical past (e.g. linkage between Sanskrit and Greek, Latin),
the colonists tried to create a rhetoric of 'love' between the colonist and the colonized.

How Orientalism lead to the rejection of Orientalism

 The study of India's past to highlight the glory of ancient India and the Aryans (distant kin-
brothers of the Europeans) also led to the British scholarly emphasis on the subsequent
degeneration of the Indian civilization
 This contradicted the policy that India should be governed using her indigenous laws and
customs, since it was these very laws and customs themselves that resulted in the decay of
the Indian civilization.
 This train of thought legitimised the administrative policies of Anglicisation, and the
authoritarian belief that the British must rescue the Indians from antiquated customs and laws
which had landed them in their present condition and prevented them from achieving the
standards of progress achieved by the Europeans.

The Rise of Anglicisation

 The first sign of active rule in India came with Lord Cornwallis, who abandoned Orientalism in
favour of Anglicisation. He was more for streamlining administration and anglicising
governance practices rather than preserving older traditions. He also focused on separating
executive and judiciary powers.
 The process of Anglicisation reflected the conservatism of the time.
 According to Cornwallis, a strong government was of the need to emancipate the natives from
their corrupt and abusive feudal lords, which was lacking during Hastings’ tenure.
 He imposed certain reprimand ways of governance which Indians were uncomfortable with.
However, modern principles of private rights, community living, individualism, liberty, private
property were introduced in Cornwallis’ tenure.
The process of Anglicisation

 Cornwallis had a double mission:

o To generate the revenue lost by Hastings and to amass enough wealth for the
Englishmen back home
o To make the people aware of their individual liberty which would lead to economic
prosperity that would bring about societal development.
 He realized that to increase the revenue collection, the property structure had to be
streamlined, so there was no point in going back to the antiquated property regime. He
experimented with certain policies in India like giving private property to citizens.
 Cornwallis believed that once the individual became free (in terms of property rights) he
becomes directly responsible to the govt for the payment of taxes, and hence the revenue
flow to the govt increases. This prodded the government to give property rights to Indians.
 In 1793, Permanent Settlement was introduced in an attempt to modernise Indian economy
and society by emphasising on rule of law and right to private property.
 To ensure that tax was collected on time, ownership of the land was given to the zamindars,
who under the regime were concerned only with tax collection and didn’t own the land.

Thomas Munro’s divergence: the Ryotwari system

 Two distinct, but somewhat related trends were noticed in the Indian administration of the
EIC. While Cornwallis introduced Permanent Settlement in Bengal, Thomas Munro introduced
the Ryotwari system in Madras, with the intention of preserving India’s village communities.
 Thomas Munro and his disciples opined that the Cornwallis system did not pay heed to the
Indian tradition and experience. They argued that reforms related to rule of law and
separation of powers had to be modified to suit the Indian context.
 They believed that the EIC’s role was to be protective, rather than intrusive, regulative or
innovative.
 Both systems, however, were based on the same fundamental principles of centralised
sovereignty, sanctity of private property, to be protected by British laws.
 Under this system, ownership rights of land were given to the peasants, who would directly
pay the taxes to the British officers.
 Munro’s aim was to consolidate the EIC’s state in the South by expanding its revenue base.

There were no class/caste conflicts when the British introduced these policies and transferred power
and hence no conflict arose between the natives and the British, as they did not interfere with the
inter-caste hierarchy present at that time (this being taken on the fact that most of the landowners
were upper-castes, and therefore powerholders in the society).

The advent of Evangelicalism

 Cornwallis’ and Munro’s rules were going on in the backdrop of the Industrial Revolution,
which introduced several new intellectual currents in Britain, one of them being free trade.
 The monopoly established by the EIC in India became a hotly debated issue in Britain,
especially for free trade lobbyists who were piggybacking on the Evangelicals that wanted the
free market for their missionary activities. The lobbyists wanted to open India to the free
market.
  The Evangelicals and Utilitarians brought about a fundamental change in the nature of the
EIC’s administration. Both schools opined that the conquest of India was brought on by acts
of sin. Rather than advocating for the abolition of this sinful conquest, they propounded for
its reform, to ensure that Indians could get the benefit of good governance. Both these schools
lead to the conviction that Britain should permanently remain in India for its evolution.
 Evangelicals supported the permanent rule of Britain in an attempt to change the very nature
of India, which was problematic due to the religious ideas that perpetuated the ignorance of
Indians. The noble mission of Britain was to change this ignorance by spreading Christianity.
 The 1813 Charter allowed missionary activities into India and the 1833 Charter revoked the
EIC’s monopolistic status.

The advent of Liberalism and Utilitarianism

 Liberalism was advocated in Macaulay’s rule, who was also the first chairman of the Law
Commission. His vision involved civilising (not conquering) and setting a liberal agenda for the
emancipation of India through active governance.
 Macaulay played a major role in the advent of liberalism in India. The liberals attempted to
European-ize the Indians and make them aware of the rule of law. It was considered an act of
“British benevolence”.
 Macaulay’s philosophy was to make India improved but under the supervision of the EIC. India
should be led to happiness and progress under the British institutions and ideas, so that when
people became happy and independent, they would cherish the contributions of the British.
 Utilitarianism was born in this atmosphere of liberalism. It was more profound in England due
to higher streamlining of law in England. Utilitarians wanted more anglicisation of laws in
India, which included codification of law.
 Cornwallis’ mission of personal liberty awareness had also demanded codification of law.
o This was to settle the rule of law, which would help in increasing awareness of
personal liberty  economic prosperity  societal development  more revenue.
o He attempted to create a society that aspired for economic development through the
Permanent Settlement.
o This created a group of authoritarian elites in India (zamindaris etc.) which divided
society along classist and casteist lines.
 Jeremy Bentham, a utilitarian, argued that good laws, efficient and enlightened administration
were the most effective agents of change and that the rule of law was a necessary
precondition for improvement. With the coming of James Mill into the EIC, Indian doctrines
were guided by such values.
 Liberals and utilitarians had very differing ideologies. For e.g., the liberal Macaulay argued for
the introduction of English education while utilitarians like Mill favoured vernacular education
as more suitable for Indian needs.
 The old dilemma of Orientalism v. Anglicisation was not totally overcome. For e.g., Bentinck,
an ardent follower of Mill, opined that legislation was an effective agent of change and that
rule of law was a necessary precondition for improvement. At the same time, he also retained
his faith in Indian traditions and nurtured a desire to give back to Indians their true religion.
The advent of Paternalism post Revolt of 1857

 Paternalism meant saving the natives from despotism. The British mentality was that the
natives knew only the language of obedience and paternalism.
 Paternalism was a negative ideology, in that there was no difference in the way the British
ruled and the Mughal ruled. In fact, the Mughal rule was less despotic because the Mughal
rulers had lesser direct control over the state.
 Paternalism is a subset of orientalism, which was about civilising the backward populations.
After the Revolt of 1857, the British were convinced that reform was “pointless as well as
dangerous” and that Indians could never be trained to become like Englishmen. Nonetheless,
they believed that their governance policy was the best strategy to civilise the people.
 Their strategy was not welfare oriented; it was tactic oriented. It was aimed at having control
over their subjects and maximizing revenue and profits, while bringing regularity in
administration.
 Paternalism occurred in the backdrop of a celebration of English racial superiority and a
reduction in the veneration of Indian culture. This was further fuelled by the rise of racial
sciences in Britain.
 Macaulay was succeeded by the authoritarian liberal JF Stephen, who emphasised the racial
differences and asserted India’s inferiority. A new Orientalist discourse, which produced an
essentialist knowledge of a backward Indian society, rationalised an authoritarian colonial
rule.
 CODIFICATION OF LAW

Merits

 Explains procedure.
 Law has to take a definite shape otherwise it will lead to issues in administrative/judicial
application. Lack of black letter law leads to the aforementioned problems.
o This leads to the evolution of the legal system
 Without a codified law or enactment, the laws in a specific subject remain fluid.
 Acts like Sexual harassment of workplace act, IT act etc., ensure a definite application of law
in their respective subjects
 To ensure that the courts can interpret and lawyers can act on the law, codification of law
occurs
 Uncertain or arbitrary judgements are limited as it is based on some specific black letter and
un-fluid law.
 Codification ensures a uniformity, certainty and conciseness in law.

Renaissance/Enlightenment Era (1685-1815)

 The scientific, philosophical and religious discourses of that time led to the development of
law. The role of the church came into question.
 Enlightenment era scholars and their works, which differed from the mainstream perspectives
of that time, influenced the development of the law.

Jeremy Bentham (1748-1832): Utilitarianism

 Bentham’s theory of utilitarianism suggests that the law should have some utility and purpose.
 The state has to ensure, through its mechanisms, maximum happiness and human rights.
o If a person has been denied justice, they may approach the state for redressal.
 Laws that cause suffering are bad
o Even imprisonment causes suffering, not only to the prisoners but also their families.
However, it is carried out in the larger interest of society.
o Penal sanctions should exist only insofar as they benefit society.
 The duty of the law is to accommodate societal, economic and other variables/contexts of the
convict before applying punishment.
 The value of punishment, in any case, must not be less than what is sufficient to outweigh the
profit of the offence.
o Section 378 (IPC): theft is punishable by 3 years
o Section 411 (IPC): receiving stolen property also punishable by 3 years.
o Section 506 (IPC): the offence of criminal intimidation is punishable with
imprisonment for 2 years. If the threat is to cause death or grievous hurt or to cause
destruction of property, the punishment extends to 7 years.
o The idea of these punishment periods is that the aforementioned crimes cause some
form of profit or sadistic pleasure towards the offender. This extended period of
 imprisonment ensures that the legal system appropriately punishes such an offence
using Bentham’s utilitarian formula (value of punishment > profit of offence)
 When two offences are in competitions, punishment for the greater offence must be sufficient
to induce a man to prefer the less.
o A man is robbing a house when a person enters the house. By running away, he
commits only criminal trespass. However, if he chose to kill the person, he has also
committed murder, which carries a higher punishment.
 Punishment must be awarded as necessary to ensure conformity with the rules and the contexts .
o Killing someone carries a certain punishment but an accidental death shouldn’t
receive the same punishment as premediated murder.
o Section 392 (IPC): carries out a stricter punishment for highway robbery specifically
carried out between sunset and sunrise compared to highway robbery during
daytime.
o Lesser the detection of the offence/offender  higher the punishment.
 The utility of punishment:
o It is for the benefit of society in that it deters society from criminal activities
o It reforms criminals and hence is towards their benefit.

AV Dicey (1835-1922) and the Development of the rule of law

 Law is an enterprise that seeks to rule us all from birth to death, which includes any type of
constitutional or statutory rule or mechanism.
 Rule of law: law has to justify its existence based on the aspects of fairness, equality, justice,
whether it has been promulgated in an appropriate manner, the scope of interpretation by
the judiciary. It is an important doctrine in the common law system.
 A government authority must exercise its power in an appropriate manner by framing written
laws as per the established procedure.
 The rule of law provides a safeguard against arbitrary rulings in individual cases.
 Dicey opines that there must be a supremacy of the law
o Absolute supremacy or predominance of regular law as opposed to arbitrary power.
o Excludes existence of arbitrariness.
o Wide discretionary authority of the government.
 Dicey’s principle of equality consists of the following:
o Equality before the law
o Equal subjection of all classes to ordinary laws of the land, which are administered by
ordinary law courts.
 Constitution is the result of ordinary law of the land:
o Constitution is the result of ordinary law, which has been developed by courts through
the common law doctrine
o It provides for legal protection of individuals, not via a bill of rights but through
development of common law.
o The general principles of the constitution
 Result of judicial decisions determine the rights of private persons in
particular cases
 This enriches/forms new constitutional principles.
  Edward Coke (1552-1634)
o King must be under God: establishment of the existence of a superior authority that
maintains checks and balances over the political sovereign.
o Supremacy of law over pretensions of executives
 Rule of law was based on the principle of legality (la principle de legalite)
 Rule of law in the Indian context was based on Rajdharma (conduct of the righteous)
 Articles 1-10 of the UDHR, the Delhi Declaration 1959, the Lagos Declaration 1961 and the UN
Report on the Rule of Law 2004, propound the rule of law

Montesquieu (1689-1755): Doctrine of separation of laws to ensure the prevention of misuse of power

Power cannot exist in the hands of one person. The concentration of power with one authority
would result in arbitrariness, lack of checks and balances and high workload.

 Historical context: Traceable to Aristotle  English Bill of Rights 1689  John Locke (1632-
1704)  Blackstone’s Commentaries on Law, 1765
 Separation of powers is not strictly maintained in modern legal systems.
 Montesquieu introduced this doctrine in “The Spirit of the Laws” in 1748
o Legislative and executive powers cannot be in the same person/body, otherwise there
can be no liberty or justice
o The life and liberty of the subjects is exposed to arbitrary controls when the judicial
power is not separated.
 Legislative branch enacts laws, the executive implements and administers the laws while the
judiciary interprets the laws.
 The structural classification of the doctrine is as follows (it is not strictly maintained):
o The same person shouldn’t form part of more than one organ of the government.
o One organ cannot interfere with another part of the government.
o One organ should not exercise the functions of the other part of the government.
 The doctrine is important as it ensures:
o Independence of judiciary
o Provides checks and balances on the executive, which has enormous powers
o Creates a government of law rather than a government of an official’s will
o Safeguards the liberty of the individual.
 Constitutional provisions that ensure separation of powers include Articles 50, 61, 103, 53(1),
123, 124(2-A), 103, 356, 54(1), 161, 192, 145, 225, 227, and Section 407 of the CrPC
o Parliament: Articles 61, 103
o President: Articles 53(1), 123, 124(2)(A), 103, 356
o Governor: Articles 154(1), 161, 192
o Judiciary: Articles 145, 225, 227, Section 407 of CrPC
o Separating judiciary from the executive: Article 50
 Supreme court v. UoI (2015)

JS Mill (1806-1873): Modern concepts of liberty, labour and women rights

 HISTORY OF COURTS AND LEGISLATURES

Why do we have a constitution?

 A fresh start in terms of governance

 It breaks and rejects certain erstwhile rules but also is influenced by and accepts some older
systems and rules.
 The time period within which a constitution is made is an influential factor on how it’s shaped

1600-1726: Informal, Rough and Ready Justice

 The EIC established its first trading centre in 1600

o The natural conclusion would’ve have been that the EIC would’ve submitted to the
lex loci. This did not happen due to the weakness of the rulers.
o Hence, the EIC were able to retain their own laws to regulate settlements.
o They slowly began to create their own institutions to govern the local populations.
 The EIC did not have any judicial powers except for disciplining its own pupils.
o A dispute resolution mechanism had to be evolved, due to which there was an
unsteady political administrative situation wherein informal, rough and ready justice
was served.
 The Charter of 1661 authorized the EIC to:
o Try and punish all persons living in its territories, including Indians. This opened the
door of introduction and application of English law in India.
o Conferred judicial powers on the executive (governor and council)
o Presidency towns were set up to deal with all matters and appeals to the British on
murder cases
 Admiralty Courts (1683): dealt with cases of trespass, injuries or other wrongs committed on
high seas. It slowly lost relevance due to the executive having judicial powers.
 The EIC did not need legislative powers, it had limited rule making powers and rules for
maintaining discipline over the company’s servants and preserving trade interests assumed
dimension later on (this coincided with the weakening of the local Indian rulers).

1726-1773

 An authoritative and uniform pattern of law was established. This led to flourishing trade and
increase in population.
 There was a lack of jurisdiction regarding the granting of probates and letters of
administration to identify executors or legal representatives if one died intestate.
 Furthermore, there was a lack of authority to deal with serious crimes committed by
company’s servants.
 The Charter of 1726:
o Established the Mayor’s Court, which applied English law. Appeals were made to the
Privy Council.
o In the criminal jurisdiction, the governor and council members acted as “Justices of
the Peace”. Their powers were derived from the Justices of the Peace Act, 1361.
  Court of Oyer and Terminer consisted of 3 JoPs and introduced the jury
system in the Indian legal system.
o Conferred legislative powers on the Governor and Council Members to make byelaws,
rules and regulations for their Presidencies
 These laws must have been in conformity with the existing laws in Britain and
must have been confirmed by a Board of Directors by the EIC in Britain.
 Effects of the Charter of 1726:
o Established and recognized the authenticity of the courts in the Presidencies. The
courts now drew their authority from the Crown and not the EIC, which was simply a
trading company
o Established a uniform legal system in the three Presidencies
o The jurisdiction of the Privy Council was extended to include the Indian territories.
o Presidencies began to maintain books of instructions and various forms for
administrative purposes
o Unless both parties had come to a consensus to bind themselves to the decisions of
the English Courts, locals remained exempted.
o The legislative, executive and judicial powers remained concentrated in the Governor
and Council Members.
o A system of records was created by necessarily writing down proceedings in all civil,
criminal and probate matters.
 Victories were achieved in the Moffusil (interior systems outside of presidencies) areas in the
Battle of Plassey (1757) and Battle of Buxar (1765)
o This allowed the British to gain effective control of the entire country.
o The EIC, in their position of political power, gained the Diwani rights and began
revenue collection and administration of justice. They became virtual rulers.
o The pre-existing systems of revenue collection and justice administration, however,
were intentionally left untouched as the EIC was reluctant to enter these justice
systems without adequate knowledge of its intricacies.
o Harrington’s Bengal regulations dealt with certain civil and criminal matters
independently of the Crown’s regulations.
 The EIC rule resulted in the exploitation of the public and the acquisition of unusual wealth by
its servants.
o The church in Britain opined that the conquests, which were driven by notions of
British supremacy, were acts of sin and went against the principal tenets of
Christianity. Similarly, the public opinion on the EIC turned against the misdeeds
conducted by the EIC servants.
o The system of revenue collection was misunderstood by the EIC servants, which led
to famines and eventually a breakdown in law and order.
o 1707 onwards, the Mughal empire began to decline1739: disintegration of the
Mughal empire begins.

DO NOTES ON REGULATING ACT, EDMUND BURKE SPEECH

1773-1832: Period of Transformation [Hastings + Cornwallis + Edmund Burke’s speech]

 Cornwallis introduced the doctrine of permanent settlement to address the following issues:
o The existence of a legal vacuum in the existing system
o The EIC’s intention to develop an ad hoc justice delivery system
 o The development of a legal system that was guided by the EIC’s servants’ inadequate
understanding of the law.
 The prevailing set of laws were not against the authority of the British government.
 The laws shouldn’t have been against the interests of society.
 The laws made reflected a period of social transformation and codification processes.

Regulating Act, 1773:

 The British Parliament assumed control of the regular governance in India. They intervened in
the EIC affairs.
 A separation between judicial and executive powers was achieved after 1773.
 More territories were to come under the control of the EIC, hence the powers of the Governor
General and Council (4 members, which replaced the earlier 2 members + Governor) were
expanded to include ordering/managing governance of territorial acquisitions.
 The revenues of Calcutta, but not Madras/Bombay, were to be acquired as well.
 Making or rules, regulations and ordinances must have been in compliance with the existing
laws in England. They had to be published/registered with the Supreme Court that was
established in Calcutta. They also had to be transmitted to the Secretary of State in England.
 A reporting mechanism was envisaged. The board of directors would report on the company’s
revenue, civil and military affairs. The EIC officials were prohibited from receiving bribes or
charging interest higher than 12%
 The Supreme Court of Judicature was established to replace the Mayor’s Courts. It consisted
of a chief justice and three judges.
o The court’s jurisdiction extended to Calcutta, Bengal, Bihar and Orissa. It included the
British subjects and EIC employees under its jurisdiction and not natives.
o They followed British law in court hearings.
 The equity jurisdiction that was followed in England, along with common law doctrines, was
administered in India.
 The ecclesiastical jurisdiction was established in India. Laws and regulations regarding the
membership of church/religious denominations were adopted and enforced.
 Testamentary jurisdiction, which appointed guardians to protect the property of infants and
lunatics, was established via the probate courts.
 It was established that the courts were to be courts of record, in that the acts and judicial
proceedings were enrolled in perpetual memorial and testimony. The courts also had the
power to punish for contempt and issue writs.

Effects of the Regulating Act, 1773

 There were ambiguities with regard to the definitions and applicability of the law
 The jurisdiction of the Supreme Court was vague and defective. The act did not demarcate
powers of the Governor’s Courts and the Supreme Court.
 The Nand Kumar case exposed the above two issues as flaws in the legal system. It was unclear
which law was he to be tried under and which court was he to be tried before.
 No provisions dealing with the relationship between the Company’s Courts and the Supreme
Court. They had overlapping jurisdictions.
 Citing emergency, the presidencies of Madras and Bombay acted independently of the Act.
The Trial of Nand Kumar (1775)

 This case is an example of the anomalous character that the Supreme Court insofar as its
jurisdiction.
 It was designed as a protective instrument against the oppressions and extortions of the EIC
servants. However, its constitution, jurisdiction and language were vague, defective and very
foreign. Its proceedings were very costly and it applied a law unknown to its subjects.
 Raja Nand Kumar brought charges of corruption and bribery against Warren Hastings before
the Supreme Council. A few days later, he was tried and found guilty on a charge of forgery by
the Supreme Court. He was sentenced to death under a British Act enacted in 1728.
 Doubts have been expressed that Nand Kumar was the victim of Hastings’ rage, in that he was
tried for daring to bring charges against him and the Supreme Court acted as a willing tool to
gratify and oblige Hastings.
 After Nand Kumar’s conviction, the Supreme Court rejected an application to grant a leave to
appeal to the King in Council. Furthermore, the court did not exercise its power under the
1774 Charter to suspend the execution and recommend the case for mercy to the King,
despite there being a strong case for the granting of mercy.

To add on, neither Hindu nor Muslim Law regarded forgery as a capital crime. The court should have
respited the execution and recommended it for appeal to the King in Council. They failed to do so and
committed a miscarriage of justice by sentencing an Indian to death by applying a British law.

Warren Hastings’ tenure as the Governor General of Bengal (1772-1785)

 Civil matters, under Article 23 of Regulation II, 1772, such as matters on inheritance,
succession, marriage etc., were to be tried under specific religious laws (Shastra for Hindus
and the Quran for Muslims)
 Section 17 of the Act of 1781: matters in the law of contracts were to be tried under the
specific religious law of the defendant’s faith.
 Hastings’ Judicial Plan of 1772:
o The provinces of Bengal, Bihar and Orissa were divided into districts. These districts
were controlled by a Collector, who would collect revenue and supervise the courts.
o Criminal matters were decided by the Qazi in the Moffussil Foujdari Adalat, with the
help of Moulvis. These courts had original jurisdiction in their respective districts.
o The appellate court, presided by the Daroga-i-Adalat, was called the Sadr Nizamat
Adalat. He was assisted by the Chief Qazi.
o Civil matters were decided in the Mofussil Diwani Adalat. These courts were presided
by the Collector and they were assisted by the native pandits and qazis.
o Small cause courts were also created for cases that dealt with matters of value
< Rs. 10. The head farmer was the judge.
o For matters worth > Rs. 500, the Sadar Diwani Adalat would try the cases. They were
composed of the Governor and the Council.
o The courts were to be open, i.e., the public were allowed to enter and see the
proceedings. Furthermore, they were to maintain registers and records of the
proceedings.
o Experts in Hindu and Muslim law were provided to assist judges.
o The lower courts were to make abstracts of their decisions and send them to the
higher courts.
 Translations of indigenous law and writings of commentaries and digests had started.
 Certain mechanisms of ADR and arbitration were created.
  He introduced the aspect of collective community fine: to suppress dacoity, the entire village
would be fined and dacoits would be executed in their villages.
 Through the 1790s Regulations, the punishments handed out to murderers were decided only
by the state. The kin of the dead could not remit any sentences.
 To collect revenue, Hastings established a Board of Revenue and appointed an Accountant
General
o Peasants were safeguarded by abolishing arbitrary cessed and unnecessary fines, and
imposing restrictions on the enhancement of rent.
 Centralised bureaucratic frameworks and procedures were established for collecting
information, making regular reports, and distilling data.
 1781: Settlement Act: governors and council could frame regulations for provincial courts.
 1794 Pitt’s India Act: proposes dual or join government between the crown and the EIC. The
crown would have final authority.
 1791: the mutilation-based punishment system was abolished.
 1797: the blood money system is abolished.
 1802: deaths of female infants were to be treated as murder and were subject to inquiry.
 1803: discretionary methods of punishment were abolished.
 1805: the village chowkidar/policemen would often collude with the robbers. This happened
in line with the caste lines. The 1805 Regulation punished them for the same.
 Thieves and robbers were banished from their villages. Their abettors were held equally liable.
 1811: Slavery was outlawed.
 1818: preventive detention laws were introduced in India.

Impeachment of Warren Hastings:

 Alleged acts of oppression/corruption

 Oppression in the Rohila war
 Exposing Chait Singh of banaras and accepting bribes
 General corruption in the EIC

Lord Cornwallis (1786-93 and 1805)

 Servants of the company were corrupt and used to indulge in various private trades as they
used to earn low salaries. To combat this, he prohibited private trade by EIC employees and
raised their salaries.
 He resented that too much power was with the collector.
 He established a trade and commerce board in Calcutta. They standardised prices of goods
with the manufacturers.
 Districts were divided into thanas and a superior officer in the form of a superintendent of
police was appointed in each district.
 Land revenue: Introduced the Doctrine of permanent settlement over a period of 20 years
o The government employed five schemes in the previous 20 years while being ignorant
of the land revenue mechanisms.
o The collectors had no knowledge about the value of the land and the nature of the
tenures.
o They were unaware of the native language and dealt with the people through native
officers.
  1793: He separated the executive and judiciary: collectors were to only collect revenue
 For any wrongs committed wherein government liability was to be fixed for the wrongs of its
officers, a suit in the Diwani Adalat could be filed.
 Control of judiciary over executive: executive officers, including the collector, came under the
jurisdiction of the courts.
 He abolished court fee so that people could approach courts and not deprive themselves of
justice.
 Regulation VII mandated that pleaders that were appointed to the courts required basic
knowledge of the law and had their fees fixed.
 Every regulation required a preamble, title and the nature and purpose of the act was to be
ascertained.
o The preamble would state the reasons for the act’s enactment i.e., the
social/political/economic problems that it aims to solve.
 Cornwallis institutionalized racial discrimination. One of his orders stated that no Indian native
could be employed in the civil, military or marine services of the EIC.

1833-1856

 The first law commission is set up in India. It devised the various legislations that would be
enacted in the British Raj.
 1838: administering of poison became a punishable offence, which was later codified into
Section 328, IPC.
 1843: the police system was formulated in India.

1857-1918:

 Multiple freedom and social movements: council acts + 1909 Act (Morley Minto reforms)
 Act 11 of 1857 punished waging war against the state. Later codified into Section 121, IPC.
 1861: the High Courts Act was passed
 1879: Legal Practitioners Act

1919-1949:

GoI Act, 1919 + Proposed Constitution was introduced by the congress in 1929 + GoI Act, 1935

Need for codification of law and flaws in codification by the EIC

 India required settled law in many legal domains due to the administrative/judicial application
problems
 The lack of codified law meant that laws remained fluid, and judgments were often arbitrary
and uncertain.
 Codification gave a proper and definite shape to the legal system and allowed for its evolution.
 However, the regulation laws created by the EIC was unsystematic and highly uncomplicated
as they were framed to meet peculiar circumstances. Furthermore, they were drawn by
inexperienced people that didn’t have a legal background.
 Three parallel legislatures in each of the provinces were working in their law-making processes
without considering the laws made by the other.
 The regulation laws were amended and abrogated so often that it was difficult to recollect
and decide about the existence off the specific regulation law.
 TIME PERIOD: 1200 – 1861 (AGE OF THE MUGHALS)

Medieval Justice System

 Territories were divided into Subah or Provinces

 Nazim or Nawab would maintain the court of Nizamat. His role included:
o Maintaining law and order
o Administrating criminal justice
o Maintaining a standing army
 The Diwan or Office of the Diwani
o Collection of revenue
o Decide on revenue matters
o Made arrangements of all payments, salaries and other expenses of the
administration. The rest of the money was sent to the central treasury in Agra/Delhi.
 What’s strange in this system is the fact that one person had control of the army, but had no
money to pay for it. He had to rely on the Diwan.
 Criminal justice functionaries (It was an informal hierarchy that wasn’t strictly followed):
o The Nawab/Nazim heard all appeals capital offenses.
o The Naib was next in hierarchy.
o The Foujdar would investigate crimes of murder, robbery, dacoity etc.
o The Kotwal would maintain general law and order.
o The Mohtassib would entertain complaints of drunkenness, false weights, gambling,
and other complaints.
 Court system:
o Chief Qazi of the Subah
o Qazi in towns
o Qazi in big villages, who would decide small criminal cases and claims of
inheritance/succession/marriage. He would be assisted by the Mufti.
o Local zamindars and landlords were given powers to collect revenue and maintain law
and order
o Panchayats were active in smaller villages. Their decisions could have been appealed
to the Qazi in towns.
 The majority of the population were Hindus. They had a separate system:
o Matters were decided by their own elders or Brahmins in their respective village
panchayats.
o The idea was to not interfere with the system of the non-Islamic believers and to allow
them to decide matters using their own laws and customs.
o Certain notions and cultural practices came in conflict with Muslim beliefs. For e.g.,
Akbar banned sati.
 There were three main ideas in Islamic Shariat law:
o Islamic conscience: what was done was incorrect as per faith and the wrongdoer
should reform himself for the day of the judgement.
o Economic reform: allowed for the victim to be compensated for their injuries.
o Severe punishment, which had to be certain.
 Islamic criminal law has three heads
o Crime against God: drinking, adultery, apostasy.
o Crime against sovereign: theft, robbery.
 o Crime against private individual: murder and offences against the body.
 Check methods of punishment from the 1st SIA module.
 Retaliation based punishments were a private right in that the victim could’ve chosen to
pursue or not pursue it. This was problematic and against public policy.
 Certain penal laws, such as those against God, were not understood in their context, as society
would attempt to punish those specific wrongdoers. This was questioned by parts of society
as these offences would not have an effect on them.
o Graver offences such as murder and bodily offences were punished, if ever, only for
private satisfaction and not for public interest.
o The private nature of crimes was open to misuse. An offender could escape
punishment by ensuring that the victims don’t come forward, either by paying them
off or scaring them.
o Unless the victim parties had come forward and complained, these offences could not
have been punished. Hence the state, with its criminal law system, intervened.
 In actual practice, the discretionary punishments were problematic due to possible
inconsistencies from the Qazi. This is the background from which the British came to India and
created their own justice system.
 INDIAN HIGH COURT ACT 1861
Background

 The goal of the law is to avoid any questions of re-arguments and to honour past court
precedents and maintain predictability and continuity.
 It maintained independence over the appointment of judges.
 It created superintendence of high courts over lower courts
 The act developed the law of writs.
 The act aimed to create dependable institutions of justice and make the judicial branch a
responsible participant in law and society interactions.

Developments

 1824: Francis McNaughten published cases based on Hindu law called “Select reports or
approved by court
 Beamish v. Beamish (1861) established the doctrine of precedent.
o Stare decisis (to stand be decisions): common law’s precedent principle.
 1861: High courts were established in Bombay, Calcutta and Madras
 1875: law reporting begins (Indian Law Reports)
 1887: the constitution and jurisdiction of subordinate civil courts in Bengal, UP and Assam is
established by the Civil Courts Act, 1887.
 Prior to the Act, the judicial system existed in a vacuum
o Two sets of courts existed
o Differences in procedure and law applied
o Disputes regarding the jurisdiction and the applicable law were frequent
o The Act used permissive legislation (the act would allow the establishment of other
high courts in other places) to establish high courts in Calcutta, Bombay and Madras.
 The High courts aimed to do the following:
o Serve better instruments of justice
o Unify the company’s courts and the supreme courts
o Record and document court proceedings
o Develop recognition for the constitution through its powers

Charter of the Calcutta High Court

 Civil jurisdiction
o Original civil jurisdiction was extended to the local limits of Calcutta
 Immovable property situated there
 Cause of action that arose from there
 If the defendant was residing or carrying out business there
o Extraordinary civil jurisdiction: the court could, in rare occasions, call a case pending
before a lower court.
 Criminal jurisdiction:
o Cases registered within the Calcutta limits
o Extraordinary criminal cases could be referred to it
o Revenue jurisdiction: matters where land revenue assessment was challenged.
o Admiralty jurisdiction
  Appellate jurisdiction: High court was the court of appeal for both civil and criminal cases from
subordinate courts.

Rules on the legal profession

 English Court - Bombay (1672) – power of admitting attorneys was placed with governor in
council
 Mayor’s courts - right of appeal governor in council next privy council
 1791 -
 Attorney protects the rights of the client
 Rights to dismiss attorney guilty of misconduct
 UNTOUCHABILITY AND THE LAW

 Galanter attempts to look at how the colonial courts dealt with cases of untouchability. He
traces the history of the legal response to untouchability, from a passive support to an
outright, constitutional abolition. Though abolished by law, the practices of untouchability
still lurk in corners of the society.
 Galanter refers to certain cases where certain portions were allotted to other Hindus
whereas other portions were allotted to caste Hindus. They affirmed the privileges of the
higher castes and higher positions such as priests.
 Considering the context of the time he was analysing; certain terminologies are used. He
analyses the colonial, pre-independence and post-independence time periods.
Untouchability practices are beyond law, as can be inferred from the language that the law
used.
 Civil rights act miserably fails to deal with untouchability due to the lack of enforcement
measures. It lacks any teeth or robust mechanism whatsoever to identify and arrest
practices of untouchability.
 When we look at the social order of society, it is attached with spiritual and religious
practices. Courts read untouchability practices along with religious practices.
 Courts refuse to accept the fact that untouchability practices are found outside of Hinduism,
which is extremely problematic. The vertical hierarchical order is a part of INDIAN society
and not just the Hindu society.
For e.g., manual scavenging is undertaken by marginalised communities belonging to many
religions and not just Hindu untouchables.
 When there was no mobility present, people belonging to the lower strata were unable to
gain any as their mobility was decided by how much the people belonging to the higher
strata wanted to give them.

All religions display some form of unequal order, so how did only Hindu casteist inequality come into
the social and legal discourse?

 In the 1935 British ordinance, there was an attempt to define who is a Hindu.
 This resulted in a very rigid sense of untouchability that was limited to Hinduism. In 1950,
the post-independence government verbatim borrowed the same language as the 1935
ordinance, which implies that no rethinking was done.
 However, after much protests, Buddhists and Jains were added to the definition of Hindus.
In 1995, Sikhs were also added. Christians and Muslims were not recognized as part of the
Indian order due to its non-indigenous origin, despite the fact that they were practiced in a
way that moulded to the Indian social context.
 There is an ingrained culture of untouchability in all religions, however since Christianity and
Islam are dissimilar to Hinduism, their marginalised communities are not brought under the
ambit of legal “untouchability”.
 Religious support for a particular order justifies the privileged keeping their privilege. Hence,
it becomes very difficult to change a society that bases its vertical hierarchy on religious
ideas.
Colonial Support for Casteism

 When the British started to anglicise laws (started in Cornwallis’ tenure) and establish
government courts in India in an attempt to move away from shastris and create digests to
learn about and apply religious scriptures, they dealt with cases by restricting and eventually
discarding the application of caste as a criterion in general civil, criminal and commercial
law.
 The notion of equality of law and the modern principles of justice were applied in a
segregated manner when it came to the subject matter of caste. The courts followed a
pattern when it came to caste cases.
 In matters of Hindu temple entry, the courts took a strategic stance of non-intervention and
chose to adhere to the customs that the temple was attached with, as it was the higher
caste who were the power holders in Indian society.
o To challenge the power holders meant that their rule could have been disrupted.
Hence, temple entry judgements were strategically given in favour of the power
holding upper castes to ensure that they did not enter a conflict with them.
o Caste groups that already had privileges enjoyed favourable court judgements that
upheld their exclusive rights, if proven.
o Courts went to the extent of awarding damages for purification methods, which was
a recognition of the untouchables’ “pollutive” effect.
o These courts, which were supposed to apply modern theories of justice, had in fact
applied casteist practices in their judgements. These courts were also approached by
the higher, privileged castes to enforce acts of injustice against untouchables.
o In cases that came from Hindu religious organizations, the courts applied principles
of the varna system and paid attention to the existing ceremonial practices in the
temple. The petitioners often went to court to assert their exclusive right to decide
who enters the temple.
o These exclusionary judgements were limited to the Hindu community.
For e.g., in Michael Pillai v. Barthe, the court refused to allow the higher caste Pillai
Christians to erect a wall to separate the place against the lower caste Mudali
Christians. This judgement was based on the lack of socio-hierarchical order in canon
law (which was contrasted to the hierarchical order present in Hindu customs).
 There was a consistency from the courts to follow exclusionary practices of the caste groups.
These judgements were lead by the social and prerogative opinions of the time. The
judiciary should have interpreted the law as per the rule of law and theories of justice, and
not the prerogative opinions of society. The British courts in Indian failed to do that.
 However, there was a dissimilar consistency present in civil and property cases related to
casteist exclusion from public facilities.
o In majority of these cases, the courts actually inquire into the history of the
presumption of exclusion, unlike the temple entry cases where they simply inquired
into the existing exclusionary practices.
o The burden of proof was to prove a historical, long-standing custom of exclusion.
o The courts took the position that the mere concept of pollution doesn’t apply to
criminal cases.
o A long-standing practice coupled with a caution in exclusion by the upper castes
formulated a legitimate expectation to exclude untouchables from using public
facilities.
  In cases related to access to public facilities, the court evolved and looked through cases
from a legal technicality point of view. The onus was on the upper caste petitioner to prove
a long-standing intention to keep it exclusive for the upper caste’s use. This was required for
the courts to rule for the exclusionary practice.
o The process was very cumbersome, which is why these cases often failed. This was
beneficial for the untouchables.
 The British legal system supported certain caste orders. There was no uniformity in following
the caste order as can be seen in the divergent judgements in temple entry cases and civil
law cases.

Self-help actions of the upper castes

 In Ramditta v. Kirpa Singh, where Sonars, excluded from social intercourse and from use of
the village well by other Hindus, brought criminal charges against leading villagers, the court
found that the villagers' conduct amounted to neither a nuisance nor an insult with intent to
provoke breach of the peace.
 In cases that involved criminal actions, the court refrained from applying the law due to the
fact that it involved criminally incarcerating the higher caste members.
 Even in matters of unlawful assembly (Venkata Reddis case), the court commented that
casteism was for the advancement of the community and that the upper caste members’
assembly to assert their superiority was not to disrupt the peace of the others. As long as a
congregation was trying to assert their higher social status, it could not have made a case for
unlawful assembly.
 Upper caste congregations went to the extent of filing cases against reformers that
attempted to abolish casteist practices. The courts responded to these cases (which often
involved the reformers getting excommunicated from their communities) through passive
action i.e., they disqualified themselves from intervening in the internal caste practices.
 In Sheo Shankar vs Emperor, the court held for a case of tearing of the sacred tread of a
lower caste by an upper caste that it was hurt not to his religious susceptibilities but only to
his dignity. Had it been torn by non-Hindus, it might have been an insult to his religion itself.
 When such self-help actions were challenged, it led to further repression in the
untouchables’ daily lives. Their economic, social and cultural lives, and access to public
facilities, such as government facilities and healthcare, were be blocked.
 The untouchables’ lives were dependant on appeasement to the higher castes. They lacked
active support and thus could not take up the matter to the courts who already preferred
the privileged, thus formed systemic dominance.
 The overall impact of the law on caste matters during the British period: there was no active
support to promote civil, economic or political rights in caste matters. There was indirect
support from the higher judiciary while an active support from authorities and lower
judiciary in maintaining the caste order.
A shift from supporting casteist practices to abolishing them

 From 1850, gradual activism could be seen in the colonial regime due to pressure from
reformist and activist, and the humanist movement.
 There is a symbolic intervention from the state for the SCs. Post 1909, there was a
withdrawal from active support for untouchability practices, which was passed side-by-side
legislative measures that were more accommodative towards the lower castes.
o A shift to accommodative policies and symbolic support can be seen. There were
legislative attempts to abolish untouchability practices though the judiciary didn't go
hand in hand with the legislature. The legislature tried to undo some of the earlier
practices adopted by it.
 There was a different apparatus that the courts inculcated into the legal system over time
when it came to untouchability.
 Government action to protect the lower castes started from the mid-19 th century, which was
the time reformers started to question anti-women and anti-Dalit superstitions.
 The Madras and Bombay presidencies, historically, saw a lot of social movements, in
contrast with the rest of India. Many progressive enactments against caste atrocities were
passed first in the Madras Presidency, such as the 1938 penal act that made discrimination
against untouchables an offence. They also took the lead in criminalising the discrimination
of untouchables in temple entry matters.
 Post-World War 2, there was more interest to come up with anti-disability legislature. There
was a strong interest in keeping temple entry as a right for all.
o There was a political consciousness that the assertion of the people, which
advocated for democracy and rights for all, had to be addressed holistically, which
called for state law to ban all forms of democracy.
 The princely states also took up making proclamations that allowed temple entry.These
legislations indemnified the trustees and temple officials from any liability for opening up
the temples to all castes. However, they contained no penal provisions.
 The observers of the time observed that these enactments gave very little recourse to the
untouchables when it came to temple entry. One of the records stated that only 510
temples were open at the time.

Abolition measures in Independent India

 The Constituent Assembly conducted important debates on untouchability and its arrest,
and how the Constitution should be created to help with that.
o Article 17 outright bans untouchability and its practice and enforcement in any form.
o Article 25, which guarantees freedom of religion, contains exceptions that allows for
temple entry to the untouchables.
o Article 29(2) bans educational institutions from denying admission on casteist
grounds.
 In 1955, the Parliament, under Article 35, passed the Untouchability (Offences) Act. It
outlaws the enforcement of casteist practices in temple entry, private businesses and public
facilities. It also prohibits instigation of untouchability and the use of social boycotts and
other pro-discrimination measures.
 In 1969, due to terminology differences, the Untouchability Offences Act was remade into
the Protection of Civil Rights Act.
 The regular interpretation of untouchability in the Constitution takes into consideration the
historic character of the caste order’s practices against the lower members. By not defining
the term, it allows for the inclusion of all forms of societal pollution, including those not
based on caste (such as menstruation).
o The Sabarimala case, to an extent, expanded the understanding of untouchability to
include menstruating women into its ambit, as the extant tradition considered
menstruating women as a “pollutive”.
 Devirajiah v. Padmanna: entry of non-Jains into Jain temples:
o The court held restricting non Jain entry is not untouchability and is constitutionally
valid. Article 17 talks of untouchability and is related to the “pollutive” effect of the
lower castes. This is a religious matter and hence doesn’t fall under the ambit of
Article 17.
 Apparent contradiction: while the state can enforce the temple entry right under Article 25(2)(B),
the denomination can claim exclusive right under Article 26(B).
o The court resolves this contradiction by recognizing Article 25(2)(B) as a broader
right, which is available to everyone, which cannot be restricted by the more
individualistic Article 26(B) right.
o The latter is subservient to the former. Temple is defined as a public place and
hence entry to temple is a broader right, which means that the denomination has to
respect the temple entry right.
o The courts have read the constitutional provisions in a manner that provides broad
scope for legislative implementation of the constitutional commitment to
untouchability.