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NATIONAL LAW UNIVERSITY, DELHI

BA, LLB (Hons.) Semester - I

HISTORY OF LEGAL AND CONSTITUTIONAL DEVELOPMENT IN INDIA

Course Outline and Reading Material Compiled by: Mr. Risham Garg Mr. Syed Iqbal AhmedJuly, 2010 (For private circulation only)

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BA, LLB (Hons.) Ist Year Semester I

HISTORY OF LEGAL AND CONSTITUTIONAL DEVELOPMENT IN INDIA

Course Objectives: The subject of Legal and Constitutional History comprises the evolution, growth and development of the legal system and institutions of a country and it sets forth the historical process whereby a legal system has come to be what it is over time. To comprehend, understand and appreciate the present legal system, it is necessary, therefore, to acquire a background knowledge of the course of its growth and development. If we were to confine our attention exclusively to the law as it is, our understanding of it is bound to be deficient as it is not possible to appreciate its present ordering without some familiarity with its past. The historical perspective throws light on the anomalies that exist in the system. Legal history is not only interesting but of practical utility, as it is only by examining the origins, course of development and reasons of particular developments, that the scope and rationale of a particular rule can be found or understood. The subject deals with the development of legal institutions and traces legal history of India starting from the year 1600. India, however, has a known history of over 5000 years. A study of the Indian Legal History should comprise the historical process of development of legal institutions in the Ancient and the Medieval periods also. However, suitable references will be made to the pre-British developments (Ancient and Medieval) as well. After tracing Legal History, an overview of present modern judicial system as it stands today and as built over the period of time shall be discussed. Appropriate references to English Legal System are also necessary. A separate part will deal with constitutional history and development. Post Constitutional developments, important amendments, landmark judgments shall be discussed.

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Essential Readings : 1. 2. 3. 4. 5. 6. 7. 8. 9. V.D. Kulshreshtha, Landmarks in Indian Legal and Constitutional History (8th ed., 2005) M.P. Jain, Outlines of Indian Legal & Constitutional History (6th ed., 2006) M.P. Singh, Outlines of Indian Legal & Constitutional History (8th ed., 2006) M. Rama Jois, Legal and Constitutional History of India (1st ed., 1984) M. Rama Jois, Seeds of Modern Public Law in Ancient Indian Jurisprudence Durga Das Basu, Introduction to the Constitution of India Arvind P. Datar, Commentary on the Constitution of India (2007) Glanville Williams, Learning the Law (11th ed., 2003) Joseph Minattur (ed.), Indian Legal System (2nd ed.)

Reference and Basic Readings : 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. M. Gwyer & A Appadorai, Speeches and Documents on the Indian Constitution (1957) A. B. Keith, A Constitutional History of India (1937) P. V. Kane, History of Dharmashastra Upendra Baxi, Towards Sociology of Indian Law (1985) I. C. Fawcett, The First Century of British Justice in India (1930) B.N. Pandey, The Introduction of English Law into India (1967) M.B. Ahmad, The Administration of Justice in Medieval India M.V. Pylee, Constitutional History of India (1967) Catherine Elliott & Frances Quinn, English Legal System (1st ed., 1996) W.A.J. .Archbald, Outlines of Indian Constitutional History (1926)

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Course Outline PART I: LEGAL HISTORY OF ANCIENT & MEDIEVAL INDIA Unit 1: What is Legal History? (a) How does Legal History fit into Legal Education? ; (b) The seamless web of law and history; (c) The Nature of Indian Legal System Unit 2: Judicial System in Ancient India (a) Ancient Hindu Law and Sources, Dharma; (b) Legal System in Ancient India; (c) Relevance of Hindu law in the modern legal system Unit 3: Judicial System in Medieval India (a) Origin and Schools of Muslim Law; (b) Criminal law, Court System and Judicial officers in Muslim Law; (c) Defects in criminal law and judicial administration Readings : 1. Introduction in Joseph Minattur (ed.), Indian Legal System (2nd ed.). 6 2. NRM Menon, Our Legal System, Legal Aid Newsletter (Nov., 1982). 12 3. The Indian Judicial System: A Historical Survey: By Mr. Justice S. S. Dhavan; High Court, Allahabad 20 4. Ancient Indian Jurisprudence VIS--VIS Modern Jurisprudence: By: Honble Mr. Justice Markandey Katju, Judge, Supreme Court of India 41 5. Common Law and Equity in Glanville Williams, Learning the Law 54 6. Nature of the Indian Legal System in Joseph Minattur (ed.), Indian Legal System (2nd ed.) V.S Deshpande 61 7. Hon. Justice Michael Kirby AC CMG, Living with Legal History in the Courts, [2003] AJLH 3 82 PART II: LEGAL HISTORY OF INDIA DURING THE COLONIAL PERIOD Unit 1: English and Colonial Foundations: (a) Administration of Justice at Madras, Bombay and Calcutta; (b) The Mayor's Courts (1726,1753); (c) The Adalat System: Warren Hastings, Cornwallis; (e) The Regulating Act, 1773; (d) The Supreme Courts at Calcutta, Madras and Bombay; Cases: Raja Nand Kumar, Patna , Cossijurah; The Act of Settlement, 1781 Unit 2: Law and Codification (a) Law and the Regulations; (b) The Charter Act, 1833, 1853; (c) Law Commission of India Unit 3: Establishment of the High Courts, the Privy Council and the Federal Court of India (a) Jurisdiction of the High Courts (Original & Appellate); Writ Jurisdiction of the High Courts; (b) Appeals from India to the Privy Council; The Federal Court of India; (c) The Supreme Court of India Readings : 1. History of Courts and Legislatures in Joseph Minattur (ed.), Indian Legal System (2nd ed.); Raj Kumari Agarwala 92

PART III: CONSTITUTIONAL HISTORY OF INDIA4

Unit 1: COLONIAL PERIOD: (a) East India Company (1600-1858); (b) British Crown (1858-1947), The Indian Councils Act, 1861; The Indian Councils Act, 1892, Minto-Morley reforms; Council of States. Unit 2: Development of Parliamentary System in India (a) The Government of India Act, 1919; (b) The Government of India Act, 1935; (c) Representative Government Unit 3: Constitutional Developments post-1935 (1937-1947): (a) The Indian Independence Act, 1947; (b) Making of the Constitution: Constituent Assembly Debates; (c) The Constitution of India, 1950 - Salient Features

PART IV: THE CHALLENGES OF THE TWENTIETH CENTURY Unit 1: Constitutional Development post-1950: Amendments, Landmark Judgements. Unit 2: Historical Interpretation: Legal Pluralism, Federalism. Unit 3: Modern Judicial System (a) The Supreme Court of India; The High Courts; Subordinate Courts: Civil, Criminal; (b) Regulatory Bodies / Tribunals / Fora / Commissions etc. (c) Lok Adalats, Nyaya Panchayats, Alternative Disputes Resolution (ADRs) system Readings : 1. Legal Service/Aid and Lok Adalat: R. Swaroop; 119

2. Punam S. Khanna, The Indian Judicial System in K. Sankaran & U.K. Singh (ed.), Towards Legal Literacy 139 4. The hierarchy of Courts in Catherine Elliott & Frances Quinn, English Legal System (1st ed., 1996) 157 ********

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THE INDIAN LEGAL SYSTEM Joseph Minattur INTRODUCTION To delve among the laws of India is like bathing in the holy waters of Triveni. It leaves one refreshed and delighted; refreshed from the pleasant contact with almost all the legal systems of the contemporary world, and delighted at the hopeful realisation that here in the Indian legal system lie the seeds of a unified, eclectic legal order which may soon grow into maturity and spread its branches, like a banyan tree, all over south and southeast Asia. Three main streams join together to form the Indian legal system. That of the common law is perhaps the most dominant among them. Then there is the stream of laws springing from religion. The third is that of the civil ('romanist') law which energizes the system with unruffled ethical verve and accords comeliness to its contours. Trickles of customary laws cherished by tribal societies and other ethnic communities also flow into the main stream. Like the Sarasvati near Prayag, the element of the civil law is not easily perceptible, though it permeates the entire structure. So a word of explanation is perhaps warranted. The very idea to a code appears to have been derived from the codes of continental Europe. When in 1788 a codification of Hindu law on contracts and succession was proposed by Sir William Jones to Lord Cornwallis, it was conceived to be on the model of the inestimable Pandects of Justinian. On 18 May 1783 A Regulation for forming into a Regular Code, all Regulations that may be enacted for the Internal Government of the British territories in Bengal was passed by the Governor-General and Council, some eight years earlier, in 1775 Warren Hastings had A Code of Gentoo Laws or Ordinations of the pundits prepared and translated by Halhed a Judge of the Supreme Court at Calcutta. The same year Bentham offered to act as a sort of Indian Solon and thought of constructing an Indian Constitutional code. James Mill, one of his disciples at India House thought that his Draught of a New Plan for the France was applicable to India. Speaking on the Charter Bill of 1833 Macaulay said: I believe that no country ever stood so much in need of a code of laws as India, and I believe also that never was a country in which the want might so easily be supplied. Section 53 of the Charter Act, 1853 declared that it was expedient: that such laws as may be applicable in common to all classes of the inhabitants... due regard being had to the rights, feelings and peculiar usages of the people, should be enacted: and that all laws and customs having the force of law should be ascertained and consolidated and, as occasion may require, amended.6

The first Law Commission immediately after its appointment in 1833