Ancient Legal System

Legal History of India

By Prof. (Dr.) Richa Sharma and Smrithi Bhaskar

The important factors that influenced the ancient legal system were:

1. Social Order:

Two important factors played a role

Caste system and the joint family system.

Caste system:

What is a caste? a caste is a group of people solely born into it. They are divisions based on birth. It determines social positions, occupation, living standards, education level, economic status and marriage.

The caste system resulted in inequality before the law. While people in a specific caste were treated equally before the law, different castes were treated unequally.

Dharma is the most important constituent of Hindu thought.

In the Rig Vedic times, there existed complete equality before law, but this slowly transitioned into Varna dharma ashrama or caste basis discrimination.

Caste provided for the beginning of the Panchayat system in India. The 73rd amendment of the Constitution of India gave a constitutional status to the Panchayati system. Though  the  Panchayati Raj Institutions have been in existence for  a long  time, it was observed that these institutions have not been able  to  acquire  the  status and dignity of  viable  and responsive people’s  bodies  due  to  a number of reasons  including   absence  of regular    elections,     prolonged supersessions,    insufficient representation  of  weaker sections like Scheduled  Castes,  Scheduled Tribes  and  women,  inadequate  devolution  of  powers   and  lack  of financial resources.

Article  40  of  the   Constitution which  enshrines  one  of  the Directive  Principles  of State Policy lays down that the State  shall take  steps  to organise village panchayats and endow them  with  such powers and authority as may be necessary to enable them to function as units  of self-government.

Panchayats now follow a 3 tier system.

Gram Panchayat- Gram Samiti- Zila parishad

Joint Family System:

What is a joint family?

A joint family is 3 generation of men and their collaterals living in a common dwelling, with common profession, resulting in commonly owned property. They were usually patriarchal in nature and lead to the rise of property disputes.

Joint family is regarded as unit of the Hindu Social System.

In case of the death of the head of the family, the property went to the eldest son. This was because of two reasons. Property was not given to women since they would get married and leave the family, which would result in the property leaving the family. The property was inherited by the eldest son since he was the one who would perform the rituals for the deceased. Rights over property were passed on along with duties of performing ancestral rituals..

Two schools fo thought exist.

• Mitakshara School of Thought- Law of Propenquity:

Nearest male blood relative inherits property because he performs rituals.

• Followed almost throughout India.
• The Dāyabhāga is a Hindu law treatise written by Jīmūtavāhanawhich primarily focuses on inheritance procedure. It is followed mostly in Bengal, Orissa and the North-eastern regions of India. it is based on criticisms of the Mitākṣarā
• The central difference between the texts is based upon when one becomes the owner of property. The Dāyabhāga does not give the sons a right to their father’s ancestral property until after his death, unlike Mitakshara, which gives the sons the right to ancestral property upon their birth.
• The most important feature was that it gave inheritance to widows.

2. Dharma

Dharma as an influence on law.

Dharma is required for moral, social, ethical, economic upliftment of human beings.

It governs the privileges and duties of man, and standards of conduct.

It is about duty as opposed to the Western concept of individualism and individual rights.

Dharmashastra does not allow for the divine right of kingship since no one is above the law.

 

3. Political Institution and system

 

4. Religion and religious philosophy

 

Constitution of Courts in Ancient India:

• King’s Court

Criminal cases and suo motto rights.

• Alternative Dispute resolution: Civil disputes
  • Kulani

Social issues and disputes.

• Shreni

Guild courts

• Puga

Family court

Cardinal rule for administration of justice:

Justice should not be administered  by a single individual

Let king or his ministers transact the business on the Bench.

Institution of Lawyers:

No reference in smritis regarding the separate institution of Lawyers

But the person well versed in law and procedure were appointed to represent  a party before the court.

However the organization of lawyers as it exists today was not in existence in Ancient times.

Judicial Procedure

• Judicial procedure was very elaborate
• According to Brihaspati suit or trial consist of four parts:

1. Purvapaksha
2. uttar
3. kriya
4. nirnaya

• If the defender denies the charges,, duty of the court is to provide equal opportunity to both to prove their case
• Evidence were based on three sources:

1. documents
2. witnesses
3. and possession of incriminating objects

Appointment of Judges:

• Caste played an important role
• Qualification:

1. Person who are ignorant to customs, non-believer in the caste system and God etc not to be appointed as judge
2. Highly qualified learned in law shall be appointed as  judge

• Judge were required to take oath of impartiality

Trial by Ordeals:

• A method to determine the guilt of the person
• Generally limited its application to cases where no concrete evidence available
• These ordeals were

1. Ordeal of Balance
2. Ordeal of  Fire
3. Ordeal by Water
4. Ordeal of poison
5. Ordeal of lot
6. Ordeal of rice-Grains
7. Ordeal of Fountain Cheese

He should decide the case without concerning the personal gains

If the person performs his judicial duties in this manner achieves the same spiritual merits as a person performing Yajna.

Crimes and Punishments:

• In the Hindu period punishment was considered to be a sort by which the impurities from the man of sinful prompting is removed and reformed his character.
• As per the ancient Smriti writers there were four purpose served by the punishment.
  1. To meet the urge of the person who suffered
  2. For revenge or retaliation
  3. As deterrent and preventive measure
  4. For reformation or redemption of the evil doer

Methods of Punishment:

• Gentle admonition
• By severe reproof
• By fine and
• By corporal punishment

Legal Literature:

• The legal system in ancient India reflects the outlook of the intelligentsia of that age. It was of two kinds, namely religious and secular. In ancient Indian society, crime and sin were distinguished as an offence against the state and offences against God.
• Legal system of ancient India included mainly 18 titles of law, although some authorities added a few more. According to Manu, these titles of law were:

1. non-repayment of debt
2. deposit, partnership business
3. resumption of gift
4. sale of an article by one other than its owner
5. non-payment of wages
6. breach of contract
7. duties of wife and husband
8. partition of inheritance
9. repentance after sale or purchase
10. dispute between the master and the keeper (of cattle)
11. boundary dispute
12. abuse
13. too severe punishment
14. theft
15. violence
16. adultery
17. gambling
18. animal betting.

Further, as per the procedural law under the legal system of ancient Indian society, a cause of action arises when a person is being harassed in a way contrary to the rules of Smriti and usage, lodges a complaint.

Base for present Hindu Law:

• Hindu law is a set of personal laws governing the social conditions of Hindus (such as marriage and divorce, adoption, inheritance, minority and guardianship, family matters).

Classification of Ancient Legal Literature

(i) Shruti:

• It literally means that which has been heard. The word is derived from the root “shru” which means ‘to hear’. In theory, it is the primary and paramount source of Hindu law and is believed to be the language of the divine revelation through the sages.
• The synonym of shruti is veda. It is derived from the root “vid” meaning ‘to know’. The term Veda is based on the tradition that they are the repository of all knowledge. There are four Vedas namely, Rig Veda (containing hymns in Sanskrit to be recited by the chief priest), Yajurva Veda (containing formulas to be recited by the officiating priest), Sama Veda (containing verses to be chanted by seers) and Atharva Veda (containing a collection of spells and incantations, stories, predictions, apotropaic charms and some speculative hymns).

  Each Veda has three parts viz. Sanhita (which consists mainly of the hymns), Brahmin (tells us our duties and means of performing them) and Upanishad (containing the essence of these duties). The shrutis include the Vedas along with their components.

(ii) Smriti:

• The word Smriti is derived from the root “smri” meaning ‘to remember’. Traditionally, Smritis contain those portions of the Shrutis which the sages forgot in their original form and the idea and subsequwntly they wrote in their own language with the help of their memory. Thus, the basis of the Smritis is Shrutis, but they are human works.
• There are two kinds of Smritis namely, Dharmasutras and Dharmashastras. Their subject matter is almost the same. The difference is that the Dharmasutras are written in prose, in short maxims (Sutras) and the Dharmashastras are composed in poetry (Shlokas). However, occasionally, we find Shlokas in Dharmasutras and Sutras in the Dharmashastras. In a narrow sense, the word Smriti is used to denote the poetical Dharmashastras.

  The number of Smriti writers is almost impossible to determine but some of the noted Smriti writers enumerated by Yajnavalkya (sage from Mithila and a major figure in the Upanishads) are Manu, Atri, Vishnu, Harita, Yajnavalkya, Yama, Katyayana, Brihaspati, Parashar, Vyas, Shankh, Daksha, Gautama, Shatatapa, Vasishtha.

• The rules laid down in Smritis can be divided into three categories:
  1. Achar (relating to morality)
  2. Vyavahar (signifying procedural and substantive rules which the King or the State applied for settling disputes in the adjudication of justice)
  3. Prayaschit (signifying the penal provision for commission of a wrong).

(iii) Digests and Commentaries:

• After Shrutis came the era of commentators and digests. Commentaries (Tika or Bhashya) and Digests (Nibandhs) covered a period of more than thousand years from 7th century to 1800 A.D. In the first part of this period most of the commentaries were written on the Smritis but in the later period the works were in the nature of digests containing a synthesis of the various Smritis and explaining and reconciling the various contradictions.
• The evolution of the different schools of Hindu law has been possible on account of the different commentaries that were written by various authorities. The original source of Hindu law was the same for all Hindus. But schools of Hindu law arose as the people chose to adhere to one or the other school for different reasons. The Dayabhaga and Mitakshara are the two major schools of Hindu law. The Dayabhaga school of law is based on the commentaries of Jimutvahana (author of Dayabhaga which is the digest of all Codes) and the Mitakshara is based on the commentaries written by Vijnaneswar on the Code of Yajnavalkya.

(iv) Custom.

• Custom is regarded as the third source of Hindu law. From the earliest period custom (‘achara’) is regarded as the highest ‘dharma’. As defined by the Judicial Committee custom signifies a rule which in a particular family or in a particular class or district has from long usage obtained the force of law.

Custom is a principle source and its position is next to the Shrutis and Smritis but usage of custom prevails over the Smritis. It is superior to written law. There are certain characteristics which need to be fulfilled for declaring custom to be a valid one. They are:-

1. The custom must be ancient. The particular usage must have been practiced for a long time and accepted by common consent as a governing rule of a particular society.
2. The custom must be certain and should be free from any sort of ambiguity. It must also be free from technicalities.
3. The custom must be reasonable and not against any existing law. It must not be immoral or against any public policy and

The custom must have been continuously and uniformly followed for a long time.

Indian Courts recognize three types of customs viz: (a) Local custom – these are customs recognised by Courts to have been prevalent in a particular region or locality. (b) Class custom – these are customs which are acted upon by a particular class. Eg. There is a custom among a class of Vaishyas to the effect that desertion or abandonment of the wife by the husband abrogates the marriage and the wife is free to marry again during the life-time of the husband. (c) Family custom – these are customs which are binding upon the members of a family. Eg. There is a custom in families of ancient India that the eldest male member of the family shall inherit the estate.

Smriti Literature

• Manu-smritiis the popular name of the work, which is officially known as Manava-dharma-shastra. It is attributed to the legendary first man and lawgiver, Manu
• Manusmriti contains laws, rules, and code of conduct followed by individuals , communities and nations.
• It was written and compiled during 200 B.C. and 200 A.D.
• Deals with social and moral conduct of a person
• Said to be first book written on the law in the world
• Manusmriti is divided into 12 chapters consisted of about 2694 Sanskrit verses (shalokas)
• Content wise it can be divided it into three sections and they are

1. Origin of the World
2. Sources of the Law
3. Dharma of the four Social classes

• It was adopted and followed in neighboring Countries like Burma, Jawa and Philippines.

Court to be Guardians of Minor and Women:

• The king shall protect the inherited (and other) property of a minor, until he has returned (from his teacher’s house) or until he has passed his minority.
• In like manner care must be taken of barren women, of those who have no sons, of those whose family is extinct, of wives and widows faithful to their lords, and of women afflicted with diseases.

Adverse Possession

• Adverse possession is a doctrine under which a person in possession of land (it could be immovable property too) owned by someone else may acquire valid title to it, so long as certain common law requirements are met, and the adverse possessor is in possession for a sufficient period of time, as defined by a statute of limitations. In other words, when a party claims ownership of a property they have been in for more than 12 years. It can also be claimed on abandoned property or it can go unchallenged by the actual owner.
• Manu chapter VIII verse 148-147 deals with title to movables lost after ten years adverse possession. Whatever chattel an owner, not being a minor or an idiot, sees being enjoyed by another during a period of ten years without taking any objection, is lost in law to the owner. The adverse possessor shall retain the property.
• Limitation Act Clause 27, 64 and 65 deals with more or less similarly however the time duration mentioned in present laws is twelve years. An important aspect of ancient law of adverse possession was the specific provision made in favor of woman to the effect that their right would not be lost by adverse possession. Manu gives protection to personal property of women from the law of adverse possession

Yajnavalkya Smriti

• If we compare Manusmritiwith Yajnavalkya Smriti, we will find a striking difference. The Manusmriti is not a systematic work. It is not divided into work on various subject matters. On the other hand, the Yajnavalkya Smriti is divided into three chapters. The first chapter is called Achara which deals with religion and morality, the second chapter is called Vyavahara, which deals with law, and the third chapter is called Prayaschit which deals with penance.
• Apart from that, the Yajnavalkya Smritiis more concise. It has only about 1000 shlokas, whereas the Manusmriti has about 3000. Also, it is more liberal than the Manusmriti, particularly towards women, etc.
• The Yajnavalkya text most likely dates to the Gupta period, between roughly the 3rd and 5th centuries.
• It also adds model of Legal Procedure:
• Yājñavalkya portrayed evidence as hierarchical, with documents receiving the highest consideration, then witnesses, and finally the five types of ordeals.
• Yājñavalkya distinguished between courts appointed by the king and those which were formed by communities of intermediate groups. He then portrayed these courts as a part of a system of hierarchical appeals.

Nāradasmṛti

• This text is purely juridical in character in that it focuses solely on procedural and substantive laws Known as the “juridical text par excellence.”
• Nāradasmṛti is the only Dharmaśāstra text to not cover areas such as righteous conduct and penance.
• Its focused nature has made the text highly valued by rulers and their governments, in the Indian subcontinent and southeast Asia.
• A 12th-century inscription in Champa empire of Jaya Harivarman, in what is now modern Vietnam, declares that its court officials were “expert in all dharmasastras, especially Naradiya and Bhargaviya”
• Similar to all ancient Indian texts, specific dates for the authoring of the Nāradasmṛti continue to elude scholars. Varying arguments have been made and evidences cited but no decisive conclusions have been made. The best timeframe which can be provided is somewhere between 100BC and 400CE

In 1876 manuscript D of the Nāradasmṛti was translated by the German scholar, Julius Jolly, making it available to legal scholars in Europe for the first time. The work was readily accepted in Europe due to its style, content, and structure which was similar enough to Roman legal texts of the time that the scholars felt comfortable dealing with it. Karl Marx even used this translation as a reference for his Asiatic Modes of Production.

• The structure of the Nāradasmṛti is based on the eighteen titles of law, which are also mentioned in the Manusmṛti but with some variation in names

Educational Trip to DHOLAVEERA and nearby places

An educational trip was organised by the Gujarat National Law University taking its 2014 – 2018 batch of around 180 students to Dholaveera (aa Harappan site), Bhuj, Mandvi and all nearby places. It was a 3 day trip in which students were shown the historical places like Sun Temple of Modhera, archaeological site of Dholaveera, Vijay Vilas Palace (the residence of a dynasty), Rani ki Vav and many other places. They were also taken to Mandvi beach so that they could see the beauty of the nature and enjoy. The White Desert was a place which no one could miss and so did we.

The trip organised by GNLU was itself a historic trip since around 180 students visited and learnt a lot about the Indian culture and tradition.

Cheers

Invasion of Muhammad Ghori and Reasons behind the success of Turks

Dr. Richa Sharma, GNLU

Muhammad Ghori

The Ghori Region: In the 12th century AD  a small kingdom named Ghor, existed in the region between Ghazani and Herat. Taking advantage of the weakness of the Mohammad Ghazni’s successors, they steadily rose to power and entered into contest of supremacy with the Ghazanis. The struggle continued between the two families. Later, Giyasuddin-Bin-Ghor captured and annexed Ghazani. He appointed Muzzudin, his younger brother,  as king of Ghazani and gave the name Muhammad Ghori to him.

Expedition of Muhammad Ghori

He began his expedition in 1175 and captured Multan and then Sindh. He tried to penetrate into Gujarat, but found the local Rajputs too strong for him. In 1179, he occupied in the Peshawar. By 1182, the whole of Sindh was subdued. The next object of his attention was Lahore then ruled by Khusrau Malik, the last prince of the house of Ghazani. He defeated Khusrau Malik, captured Lahore and annexed Punjab to his dominions.

Ghori’s war with Rajputanas

The occupation of Punjab opened the way for his further conquest to India which however made inevitable a conflict with Rajputs particularly his neighbour Prithviraj Chauhan, king of Ajmer and Delhi. The particular conditions of India were far from satisfactory as it was divided into innumerable small states.

According to Muslim writers, Jaichandra of Ghadwala (Benaras) area was the greatest king. It is believed that he was jealous of the position of Prithviraj Chauhan. His beautiful daughter, Sanyukta was carried away by Prithviraj Chauhan and the story of this romance has formed the theme of many songs of that time. This added abitterness in their relationship and some writers suggest that he invited Ghori to India. However, looking at the political condition of India, the invasion was inevitable. Prithviraj Chauhan decided to check the advances of Muhammad Ghori and marched against the army of 2,00,000 horses and 3,000 elephants. He was helped by fellow Rajput princes except Jaichand.

First Battle of Tarain

The first battle of Tarain was fought in  1191 in a village 14 miles away from Thaneshwar. Muhammad Ghori directly fought with Govind Rai, brother of Prithviraj and both wounded each other, Ghori was injured severely, was exhausted and was about to fall down. The Khalji soldiers helped him and carried him off the battlefield. Thus, the first battle was won by the Rajputs.

The second battle of Tarain

Ghori punished all those who ran away from the battlefield. He re-gathered his forces and once again marched against the Rajputs. 150 Rajput princes participated in the war but were defeated. Prithviraj Chauhan was captured and taken to Ghazani where he was put to death. Ghori returned to Ghazani leaving the conduct of his Indian campaign to his trusted slave, Qutub-ud-din-Aibak.

Qutub-ud-din-Aibak captured Delhi, Merrut, Ranthambore and Koil in 1193. He fought the battle of Chandwar in 1194 and defeated Jaichand. In 1196, he captured Gwalior and then Anhilwar. In 1203, he captured Kalanjar and in 1206, Bihar and Bengal.

Why the Turks Succeeded?

According to British historians, the Turkish army was drawn from a warlike tribe inhabiting in the difficult regions lying between the Indus and the Oxus. Indians were pacifist in nature and opposed to war. They lack war skills. India was divided into small states which hampers expansion of an ambitious invader. This view is criticised since Indians were not really pacifist as they fought wars with rival kingdoms. Neither was they lacking in war skills. The Rajputs were equally brave and martial in spirit.

Jadunath Sarkar traces their success to Islamic social structure. The three unique characters which Islam imparted to the Arabs, Afghans, Pathans, and Turks were

• Complete equality and social solidarity since they were not divided into castes.
• Absolute faith in god.
• Islam secured them from drunkenness which, according to Sarkar, was the main cause of the ruin of the Rajputs, Marathas, and other rulers.

The social and political structure of Indian and its military organisation also contributed to the success of the Turks. Politically, India was disunited and indulged in internal conflicts. Indian forces were a culmination of feudal forces and thus lacked unity of command.

The concept of Chhoot i.e. not mixing with other castes also hampered military efficiency and unity of the army. Rajputs fought bravely but were fighting a defensive war. Their movements were slow because of their elephants while the Turks were on horses and had Asian Turkish guerrilla warriors. They did not care to find the loopholes in the organisation of their enemy.

Administration During the Sultanate Rule

Dr. Richa Sharma

 

The Government established by the Turks was a compromise between Islamic political Ideas and institutions on one side and existing Rajput political systems with or without changes on the other.

To understand the Muslim administration it is equally important to understand Muslim political ideas. Muslim political ideas were derived from Muslim theology and to some extent, Greek thought. The Greek thinkers provided the ideas, which were put forward as a rational justification for the institutions adopted and developed by the Muslim theologists.

For better administration, the sultanate was divided into divisions from the province to the village level.

• Province- Subah
• District- Sarkar
• Parganah- taluka/block
• Village- Gram

In the Central administrative system, the following were the important provisions.

Sultan: He dominated the government and was the legal head of the state. He acted as the chief executive of the highest court of appeal. His chief responsibilities included protection of the state, enforcement of law, collection of taxes, and the welfare of the people. The nobility, civil services and the ulema supported the sultan. He made appointments for all the higher civil and military posts.

Wazir was the most important post next to that of the Sultan. He was in charge of the entire fiscal administration of the realm and all matters relating to income and expenditure. His department was known as the Diwan-i-Wazir.

Musharaf-i-Mumalik was equal to the present day Accountant General. This office was used to maintain the accounts of the state. He assisted the Wazir.

Sadr-us-Sadar, also known as the Qazi-i-Mumalik had to deal with religious affairs, immunities to scholars and members of piety.

Munshi-i-Mumalik was the post and dealt with all state correspondence.

Naib sultan– the appointment to this position was made only when the ruler was weak or a minor.

The relationship between the Sultan of Delhi with the Caliph:

Most of the sultans kept the pretence of regarding the Caliph as the legal sovereign while they were the Caliph’s representatives. Most of them included the name of the Caliph in Khuluba and Sikka and adopted the titles indicative of their subordination to the Caliph. Some emphasised their own importance, such as Balban, who considered his position to be the most important, next only to that of the Prophet, Muhammad Tughlaq, who also did the same during the early years of his reign. However, Balban retained the name of the Caliph on the Sikka and Khuluba. Neither of the two had the power to  all themselves the Caliph. The only person to do this was Qulubbudin Mubarak Khilji, son of Allauddin Khilji. Only 3 Sultans sought and received the letter of investiture from, the Caliph and they were Iltutmish, Muhammad Bin Tughlaq and Firoz Shah. Muhammad Bin Tughlaq did this to pacify the Ulema.

The Laws of Succession: The Turko-Afgans failed to evolve any definite laws of succession.  According to Islamic ideas, “A male adult suffering from no physical disability, a free born Muslim, having faith in Islam, and acquainted with its doctrine and who is elected by the people.”However, in practice, there were several violators, for example, Razia who was a woman. Minority proved no bar in the case of Muhammad Bin Tughlaq. Kaiquabad was paralytic but remained Sultan. Allauddin frankly admitted his ignorance to Shariyat.

Revenue System: State depended upon agricultural produce. Revenue was taken in cash or kind. Jazia was enforced on non-Muslims. However, women, children, old people, and the physically disabled, monks and priests were exempted from Jazia.

Army System

The army was administered by Ariz-i-Mumalik whose duty was to provide horses and ration to the soldiers. He was to assign different tasks to the soldiers and was also responsible for transfer of military personnel. However, he was not the commander in chief of the army but was its collector general. Thus, the department was to recruit, equip and pay the army. The sultanate was a military dictatorship. It owed its genesis to the military victory of the Turks over the Indian rulers in the twelfth and thirteenth century. Its strength and stability depended on its strong and efficient army. The army organisation of the Sultan was based on feudal principles which carried all the inherent defects of the system with it.

Judicial System

Sultan was the highest court of appeal as well as the fountainhead of justice. He used to sit at least twice a week to hear complaints against official of the state.  Qazi-i-Mumalik used to sit with the Sultan to give him legal advice. Decisions were made according to Shariya whereas cases of the non-Muslims were decided according to their own religious laws.

Theoretical Foundations of Judicial System in Medieval India: Observations on Some Important Legal Texts

Article by Prof. (Dr.) Surinder Singh

The two major states of the medieval times, the Delhi sultanate and mughal empire, developed elaborate structures of administration. Apart from collecting land tax from a widely scattered peasantry, they paid a fair amount of attention of the administration of justice. The modern literature has concentrated on the functions of various judicial officers and a wide range of cases that culminated in appropriated verdicts. However, the existing literature has paid little attention to the compendiums of rulings, both officials and unofficial, that were produced from the mid thirteenth century to the establishment of the arrival of British colonialism. Our study seeks to examine the content of a few important legal texts, with the object of deepening our understanding of law and justice in the premodern times.

During the second half of the fourteenth century, an anonymous scholar edited the text of fatawa-i-firoz shahi which had been originally compiled by sadruddin yaqub muzaffar kuhrami. It is a collection of legal opinions of eminent jurists and these are arranged in chapters according to the subject. Employing both Persians and Arabic, it adopts a question- answer pattern. Though the compiler was bound to include the existing legal opinions, yet his work takes into consideration the contemporary political, social, and economic circumstances. It deals with the powers of the sultan, the rights of the rebels against him and the principles of collecting land revenue. Apart from the issue of partnership in trade and transfer of money, it touches upon the matter of fixing market prices by the ruler. More importantly, it recognizes the presence of non – Muslims and, in particular, examines their relations with the Muslims in different roles and positions. It gives equal rights to the non – Muslims, paying due regard to the to their concerns and showing no discrimination on any ground whatsoever. On the one hand, it approves the social intercourse between Hindus and Muslims in the ordinary activities of life. On the other hand, it throws light on the rights of Hindus vis-à-vis Muslims regarding payment of loans and ownership of property. What is rather crucial, it allows freedom to the Hindus in the practice of their religious rites and social customs. On the issue of the rights of the Hindus, this text differs from the injunctions issued by several contemporary authorities.

During the mughal period (16^th to 18^th century) the ownership of land became a contentious issue, as it was debated among several stake holders. We came across two legal texts that focused on this important question. During the second half of the sixteenth century, sheikh jalaluddin thanesari wrote the risala tahqiq-i-arazi-i-hind, which sought to plead the cause of the holders of land grants (madad-i-maash). It is true that these grants permitted the beneficiary to enjoy only the land revenue of particular tracts expressed in units of area (bighas), but did not give him the right of ownership of land, nor its transfer or sale. But the learned scholar makes a spirited defense of the land grantees, claiming the complete right of ownership for them. He builds his case on the ground that land under reference, being waste land and ownerless [property, belonged to the public treasury (bait-ul-mal) which was in the hands of the ruler who, in turn, could assign it to anyone. The second text, risala ahkam-i-arazi-hind which was written by qazi Muhammad ala i9n 1745 ad, enters the raging debate on the ownership of land in mughal India. In his view, the ruler cannot be accepted as the owner of land, as the land revenue claimed by him is larger than the permissible limits. Hence the land belongs to the public treasury (bait-ul-mal). This particular stance deviates from the official position of the mughal state, which is explicitly articulated in chronicles, documents and orders.

Aurangzeb sponsored the compilation of fatawa-i-alamgiri, which was a monumental encyclopedia of legal rulings. It was completed over a period of eight years (1667-1675). Sheikh nizam burhanpuri, its chief editor, was supported b nearly fifty compilers. Five sections of the work were placed under one editor, who was assisted by a number of junior assistants in accordance with their specializations in the domain of law. It aimed at patronizing the learned theologians and helping the qazis to deliver better judgments. It was modeled on the pattern of the classic treatise Hidaya as well as those that were produced in India during the previous four centuries. The work under reference comprises more than sixty sections which deal with laws on religious rites, economic transactions, land rights, and treatment of slaves. It also embraces matters relating to judicial proceedings, legal devices and inheritance. Under each topic, it describes cases from standard works of jurisprudence (fiqh), each judgment being followed with reasoning from the relevant works. The source of each case is mentioned, so that a total of nearly 124 sources have been counted. In a section entitled, adab-i-qazi, it lays down his qualifications and responsibilities, with reference to his abilities as a mufti and mujtahid also. It also prescribes the procedure expected to be followed by the qazi with reference to the traditional ingredients of the Muslim law (shariat). Y=the compilation was consulted in the different parts of the Islamic world, where it became popular as fatawa-i-hindiyya. In India it was translated into Persian and Urdu, while N.B.E. Baille (d. 1883) translated its portions into English for use in the courts if the east India company.  

Basics of Ancient Indian Legal System

By Vasu Jain

India had been for ages known to the world for its intellect. Varamahira, Sushruta, Aryabhatta, Charaka are some names of the personalities who have added to the charm of India by pioneering in their respective fields. The power of India can be estimated by the nickname of India i.e. The Golden Bird, which it got due to its immense treasure. Since antiquity, India had been a place of attraction whether its Harappan time, Vedic age, ancient history or Muslim rule or the present. In this prestige, law was the feather in the hat. Since beginning of the Indian society, it has governed itself with the rule of law. The people and leaders of the ancient India has recognised the importance of law. Till humans are covered by law, they are the best animals.

Though the society was at a primitive stage but their concept of law was very advanced. The law system could be understood by knowing the social institutions, political system and religious philosophy of that time.

In determining the social order two important concepts may be stated, namely, the caste system and joint family system. The society at that time was divided into four castes. This bifurcation was peculiar to India in which the society was divided on the basis on occupation and birth. It is believed that the caste system was initially the division of labour on basis of occupation but gradually it took a rigid form and became a hereditary phenomenon. The Brahmins were the learned men who could study Shastras and smritis, the Kshritiyas were the warriors for defending the state and its citizens, the Vaishyas were the traders and businessmen and lastly the Shudra were the clerical men who would do all the clerical and so called low jobs. This caste system took a rigid form in the Later Vedic period where it was solely based on the birth and is defined as caste as a social group consisting solely of the people born in it. The basic feature of caste system was endogamy i.e. the practise of marring within the same caste. In later centuries caste exclusiveness became absolute and reached its peak in caste panchayats. Though caste system was conservative still it was most needed to suit the requirements of ancient India. Second feature in determining the social life was family. There was the prevalence of joint family where all the progeny live with their parents up to marriage and male progeny continues to live with them even after the marriage. Hence the size of family is big. It was patriarchal society and hence the head of the family was the eldest male member. His position in the family was very strong and decisions were binding on the whole family.

Political situation at that time was complex. Monarchy type of government was there. Kings rule the state. But the king was not an arbitrary ruler of territory rather a tribal head. He govern the people with their consent and approach. He looks after the material and spiritual advancement of the people. But the position of king was not supreme. Despite no law of the land, law was the supreme authority and nothing was above it. The doctrine of King can do no wrong was not accepted in the Indian context. The Dharmshastras impressed upon the Kings to look upon the people as God (Praja Vishnu) and serve them with love and reverence.

Religion is the third most important feature to be understood before we could go on to the legal or judicial system. Since it was a primitive society, religion was widely followed and the sanctions were mainly religious in nature. The hindu religion and philosophy laid down four grat aims of human life: Dharma (religion and social law), Artha (wealth or economic well-being), Karma (doing work) and Moksha (salvation of the soul). The correct balance of first three leads to the fourth. The major worshipping forces were the nature and personified version of natural phenomenon. Vedas were the major religious texts. These widely describes about the Dharma.

Dharma is mostly misunderstood as religion, but the fact remains that it is a word of widest import, having no corresponding word in any other language. Dharma constitutes the blueprint or master-plan for all round development of individual and different sections of society. Mahabharta explains it as that which helps upliftment of living being. Madhavacharya of Vijaya Nagar Empire explains it as that sustains and ensures the progress and welfare of all. It is promulgated in the form of positive and negative commands (vidhi or nishedha).

The society at that time though had just started to settle itself but it had organised itself with the 3 pillars of social, political and religious institutions. On all these pillars rests the structure of legal framework of that time which was highly dependent upon caste system, political system and religion & morality.

Indian Code of Conduct Series- Part I

Ahinsa Parmo Dharma: Teaching from Jainism

By Vasu Jain

The main aim of every religion is to live peacefully. Just the way Jain Dharma has aim of living peacefully and happily. Jain Dharma regards that we should not behave in the manner that we donot want for us because every creature feels his existence like us. Every man has his price. So we should not tease anyone through force, action, words or even in thoughts. We should not have any feeling to hurt anybody. The principle of ‘Jiyo Aur Jeene Do’ and “Ahinsa Paramodharma” are the main mantra of Jain Dharma. In the world the spirit of ‘Parasparopgraho Jeevanam’ can convert the thinking from violence to non-violence and can establish a peaceful atmosphere, happy life and heaven on earth.

Jain dharma regards that as you feel unhappy, sad due to some problem created by somebody else, the same way others also feel. So not even in dreams we should have any feeling of violence. Always be careful, helpful and be happy. When you do good, good happens to you too. But if you do bad for others, you will be victim as well. We should not have any hatefulness by seeing someone physically disabled, poor, sick or any other man. Never think bad and never have the spirit of revenge. Never see mistakes of others and have a quality of forgiving others on their mistakes. Do not blame anyone or accuse others by using wrong words because everybody commits mistakes. No one is perfect here. So, if the world want to live peacefully follow the principle of ‘Ahinsa Parmo Dharma’ and ‘Live and Let Live’.

“Everybody has his Price”

 

History of Separate Electorate System in India, By Dr. Richa Sharma and Nikhil Varshney

The reservation system pervasive in India emanated out of separate electorate system which was brought for the first time through Indian Councils Act, 1909. A proper analysis of the separate electorate system manifests that separate electorate system was a result of ‘Divide and Rule’ policy which British followed.

Tracing the history of separate electorate system, it was brainchild of Prince Aga Khan, and his colleague Nawab Mohsin-ul-Mulk who spearheaded the organization of Muslims that safeguard their interests. The two presented demands of Muslim India to the then Viceroy, Lord Minto at Shimla. The Address read before the Viceroy by Prince Aga Khan inter alia demanded the obscure ‘separate electorates’ for the Muslims of India. This was the genesis of separate electorate system in India. The Muslims asked for their separate representations at all levels of Government working and called for elections for Muslims in these tiers should be held separately and exclusively by them thereby shrinking the chasm between Hindus and Muslims. It is noteworthy that to assert their stand and make known the correct view-point of Muslims, Prince Aga Khan thought that it was necessary to have a political platform and association for the Muslims of India and therefore, on 24th October, 1906 wrote a letter to Nawab Mohsin-ul-Mulk which went on to play a seminal role as with this document began the journey of Muslim League under whose flag the Muslims after getting freedom got a separate nation for themselves in the form of Pakistan.[1] British Empire played a role of stooge and maneuvered the situation which shored up the communal tensions in the nation. Going by the current situation which has its seeds in the past, it would be apt if India is referred as ‘unity in division’ instead of ‘unity in diversity’.

The passing of Indian Councils Act, 1909 was a watershed event in the history of Indian legislature. The drafting of the said legislation was largely affected by the clamour voiced by Aga Khan and Nawab Mohsin-ul-Malik, as mentioned before. The 1909 Act fell back on Minto-Morley Reforms. The Act apart from providing elected majority in the Provincial Legislatures provided for elective representation at the Centre. The Act did not lay down the elective method for the elected members. The method was left to be decided under the Regulations made under the Act by Governor General of India. This laid the foundation stone for ‘separate electorate’ in India. A policy decision was taken by the Secretary of State that there was no need to keep an official majority in the Provincial Councils though was required in Central Legislature and the Act provided for the same. Under the Regulations, the 25 members out of the 60 members in the Central Legislature were elected by non-official members of each of the Provincial Councils by the landholders of certain provinces, by the Mohammedan community in certain provinces, by Chamber of Commerce and others. The principle of communal election was accepted only in the case of Muslims and was implemented by the Regulations made under the 1909 Act. This was the outcome of unswerving and steadfast demands by Muslims who expressed serious concerns that a first past the post electoral system, like that of Britain, would leave them permanently subject to Hindu majority rule. The Act of 1909 stipulated, as demanded by the Muslim leadership that only Muslims should vote for candidates for the Muslim seats (‘separate electorates’).

In India’s pre-independence era, when the Muslims in India demanded fair representation in power-sharing with the British government along with the Hindus, the British government exacerbated the situation with their ‘Divide and Rule’ mindset and paved way for a separate electorate system for the Muslims. As a result, of the total 250 seats of the Bengal Legislative Assembly, 117 seats were kept reserved for the Muslims. Accordingly, the general elections of 1937 were held on the basis of the extended separate electorates, where only the Muslims voted for the 117 seats, in Bengal.

The principle of communal representation which was accepted under the Morley-Minto Reforms was retained and was pushed further in the Government of India Act, 1919. It thus so happened that in every Council, there were Mohammedan members in galore who were elected by Mohammedans. There were certain seats for Europeans in most of the Councils, while in the Punjab Council, there were some seats reserved for Sikh community. So far as Madras Council was concerned, there were seats reserved for non-Brahmans, Christians and Anglo-Indians. Similarly in Bombay Council, seats were reserved for Mahratta community and in Bengal, the seats were reserved for Anglo-Indians.[2]

The Government of India Act, 1935 which holds the distinction of introducing federalism in India continued communal representation with weightage in favour of the Muslims and Sikhs. The elective seats in the House were divided among General seats, Sikh seats and Mohammedan seats. Some seats were reserved also for Scheduled Castes and women.

Dr. B.R. Ambedkar too borrowed an idea from the Muslim League and voiced for ‘separate electorate system’ for Dalits considering the growing disparity between Dalits and rest of Hindu community. This move was stoutly rebutted by Mahatma Gandhi as he saw an endless abyss in case if Ambedkar’s demand is accepted.[3] The report of the Simon Commission finally granted reserved seats to the Depressed Classes. However, Simon Commission Report remained a dead letter since Congress was involved in its making. To move out of the impasse, a Conference was held in London in 1930, and then a Second Round Table Conference in 1931 but petered out. The arbitration given by the British following the Second Round Table Conference regarding the status of various communities in the Constitution, called the Communal Award, was announced on August, 1932 which recognized the right of the untouchables to have a separate electorate. They were given the right to vote at the same moment within the framework of general constituencies and within 71 separate constituencies which could only be filled up by Dalit candidates. However this scheme was not palatable to Mahatma Gandhi which later led to “The Poona Pact” between Gandhi and Ambedkar introducing a system of reserved seats, in which 148 seats (instead of 71 as put forward by the Communal Award) were granted to the Untouchables in the Legislative Council. It ousted the principle of separate electorates; in those 148 constituencies where the Untouchables were the most numerous – the members of the Depressed Classes would designate by themselves the four Dalit Leaders who would be the candidates among whom all the voters of the constituency, mixed of all castes, would then have to elect their representative.[4]

The Indian history has been very grim for British blazed the communal tensions between Hindu-Muslims brethrens and in the garb of providing equal opportunities and adequate representation to Muslims were promoting their ‘Divide and Rule’ policy. The current reservation system in India is a more nuanced form of ‘separate electorate’ system with certain variations. As is said that the present working system in India is marred by the reservations, it is manifest that it has a long history behind it which again was brainchild of British and Muslim brethren and Dalits were just pawns in this game.

[1]Sherali Alidina, ‘Role of the late aga khan as a leader of the muslims of the subcontinent in the political field’, available at http://www.ismaili.net/Source/0036.html as last accessed on April 1, 2014.

[2] Jain M.P., ‘Outlines of Indian legal & Constitutional History’, Lexis Nexis Butterworths, 6^th edn., 2009, p.493-497

[3] “Evidence of Dr Ambedkar before the Indian Statutory Commission one 23rd October 1928”, The Servants of Somavamshiya Society, Bombay, July 9, 1928, in Private Papers of Ambedkar, reels 1/2. p.465

[4] R. Kumar, “Gandhi, Ambedkar and the Poona Pact, 1932”, Occasional Paper on Society and History, No. 20, Nehru Memorial Museum and Library, New Delhi, p. 153-155.

The History of Contribution of Forensic Toxicology in Crime Investigation, By Dr. Richa Sharma

This article traces the historical background of development and use of forensic science in civil and criminal investigation since antiquities to contemporary times and secondly explores the extent to which the forensic science has proved useful in investigation and trails. Forensic Science comprises of various branches of science and in this paper, the author focuses on forensic toxicology. The paper deals with the various tests prevalent in ancient India as depicted in the shastras and smritis.

Use of Forensic medicine

While tracing the history of human society we come across the fact that science and law developed simultaneously. For instance, law and medicine problems are found in the written records of early society of Egypt, Sumer, Babylon, India and China dating back to 4000 to 3000 B.C. The information about poison given in Chinese Materia Medica is of about 3000 B.C. while code of Hammurabi provides, first known medico legal code of 2200 B.C. In about 300 B.C., the Rabbis of Rabinical Court, responsible for implementing the Jewish Laws, sought the aid of medical expert in the administration of justice. Later Greek and Roman medical men collaborated in the development of the forensic medicine. Manusmriti also talks about many sexual matters and examination under the law of India. One of the oldest and important sources which provide the information about forensic investigation is Kautilyas’ Arthashastra. The Arthashstras of Kautilya provides useful information about the classification of the methods of murder and use of forensic medical investigation into such cases. Further Manusmiriti’s Chapter VII directs the judge to use the primary level of forensic psychology while observing the accused.

Forensic Toxicology is a branch of Forensic Medicine dealing with medical and legal aspects of the harmful effects of chemicals on human beings. In other way to define this science we can say, Forensic Toxicology is an interdisciplinary science using toxicology and other disciplines such as analytical chemistry, pharmacology and clinical chemistry to aid medico legal investigation of death and adverse effect of drugs and chemicals on various biological systems . The primary concern for forensic toxicology is not the legal outcome of the toxicological investigation but the technology and techniques for obtaining and interpreting the results. The study of toxicology includes the study of all substances, natural or synthetic, that cause damage to living tissues and have an injurious or fatal effect on the body irrespective of whether they are ingested, inhaled, or absorbed or injected through the skin .

Toxicology in Ancient world

Toxicology from the ancient world, medieval times and Renaissance period is a science that is rooted in rich and interesting history of mankind. Reference to the poison substance can be traced back to the use of natural poisons in hunting, “medicines”, assassinations, warfare or for other purposes. Early records show that humans did indeed use poisons rather effectively. History manifests that it was not uncommon to retain the services of a poisoner to rid oneself of an inconvenient spouse or political rival or to take the services of poison “tester” to ensure that the food and drink to be consumed would not result in one’s own demise! The development of toxicology as a science has been, like most other disciplines, a long process of slow and steady growth from the work and deeds of humankind.

One of the most interesting anecdotes resulting from the combination of both ancient history and current toxicological research is the story of King Mithridates, King of Pontus (120-63 BC) who according to toxicology legend was so afraid of becoming a casualty of political poisoning that he concocted a potion from a great number of herbs for his own consumption. It is believed that he understood that by consuming small amounts of potential poisons, he might protect himself from any would-be poisoner i.e. he believed in the effectiveness of hormesis. Apparently, his plans worked so well that he gained a name for himself as one so mighty he could not be killed. Unfortunately, it is said that when circumstances were such that he desired to kill himself, he was unable to do so by ingesting poison and had to be run through by a sword instead.

Toxicology in Ancient India

The ancient Indian scriptures contain references to the poisoning of kings, the doings of professional poisoners (Vish Kanya and Vish Bal) and of widespread organized poisoning in pre-historic and historic times. In Kalpasthana, Chikitsasthana and Uttarasthana of the Shastras, symptoms and antidotes of poisons are given in detail.
The origin of toxicology in India can be traced to the Vedic period. The earliest mention of poisons is found in the Atharva Veda. Remedies for many ailments, including poisoning were discussed in this text. Another major work in this field was the Agnivesa Charaka Samhita. This treatise contains a detailed description of the signs, symptoms and treatment for commonly found poisons. The third major work on Indian medicine, which contained a chapter on poisons, was the Susruta Samhita. Susruta has described several mode of poisoning in ancient India. He has explained how the poisons are mixed with food, drink, honey, medicine, bathing water, anointing oils, perfumes, eyelash pigments and snuff; or sprinkled over clothes, beds, couches, shoes, garlands and jewellery, saddles of forces etc. He has also described secret poisoning of wells and other drinking water to destroy enemies.

Agad tantra (toxicology), a branch of Ayurveda, basically deals with the toxins. It mentions the way to get rid of poisoning in the body. There happens to be a mention of wide range of poisons which are either of animal or plant origin. It also refers to poisons derived from minerals like arsenic etc. and artificial poisoning substances. Charak samhita, sushurut samhita and ashtang samghrah also mentions about the importance of Agad tantra in our lifestyle. It has also mentioned about the combination of the food stuffs that is to be avoided as they can become poison after coming in contact with each other. It also mentions about the antidotes of the poisons.

Great variety has been found in the modus operandi of the poisoners in India. The methods used were crude at times. Poisoning is not preferred method for committing homicide in India because more definitive means such as weapons are available for the purpose. However where homicidal poisoning is committed, the motive does play a role in the choice of poison. Thus the poisoner might employ Dhatura freely enough to intoxicate the victim he intends to rob. Suicide by the taking of opium or arsenic is occasionally met with but like suicide in general, it is uncommon. Arsenic is used as white arsenic or as one or the other form of the natural sulphides. It is given in enormous doses. The recovery of several hundred grains of arsenic from a dish of curry is no uncommon occurrence. Curry is favorite mode for the administration of the poison; it effectually disguises arsenic, white red or yellow.

According to a legend which is a later jaina invention, while Chanakya served as the Prime Minister of Chandragupta Maurya, he started adding small amounts of poison in Chandragupta’s food so that he would get used to it. The aim of this was to prevent the Emperor from being poisoned by enemies. One day the queen Durdha shared the food with the Emperor while she was pregnant. Since she was not used to eating poisoned food, she died. Chanakya decided that the baby should not die; hence he cut open the belly of the queen and took out the baby. A drop (bindu in Sanskrit) of poison had passed on the baby’s head, and hence Chanakya named him Bindusara. Bindusara became a great king and was father of the greatest Mauryan Emperor since Chandragupta – Asoka.

TESTS OF POISONED FOOD AND OTHER MATERIALS IN ANCIENT INDIA

In ancient India, test of poisoned food and other materials is witnessed like for Kautilya being a king, to ensure his personal safety, he was acclimatized to food mixed with poison. According to him, in a well-guarded place the head cook should supervise the preparation of different varieties of delicious dishes. The king is advised to partake of such fresh dishes after making oblations, first to the fire and then to the birds.
When the flame and the smoke turn blue and crackle, and when birds that eat the oblation die, the presence of poison in the dish was to be inferred. When the vapor arising from cooked rice has the colour of the neck of a peacock and appears chill as if suddenly cooled, when vegetables possess an unnatural colour and are watery and hardened and appear to have suddenly turned dry having broken layers of blackish form and being devoid of smell, touch and taste natural to them; when utensils reflect light either more or less than usual and are covered with the layer of foam at their edges; when any liquid preparation possesses streaks on its surface; when liquor and water possess reddish streaks; when curd is marked with black and dark streaks and honey with white streaks; presence of poison was to be inferred.

(Note: The present research is part of book titled “Law, Development and Socio-Economic Policy” published under the authority of GNLU.)

Brief Narration of Separation of Power in Colonial India and the conflict between Executive and Judiciary – Dr. Richa Sharma

Brief Narration of Separation of Power in Colonial India and the conflict between Executive and Judiciary

 

The doctrine of separation of power, more or less is governed by the principle of checks and balance in today’s times. The generally accepted meaning of doctrine is division of executive, legislative and judicial functions of government amongst disparate and independent bodies similar to other significant doctrines like that of liberty, equality, etc. Separation of power is also considered a product of western intellectual revolutions. According to Britannica Encyclopedia and the most acceptable proprietor of this theory Motesque, it is an ideal way to run a government. Though the notion of the separation of power prevailed since ancient times, it was only Montesque who for the first time formulated this doctrine systematically, scientifically and clearly in his book ‘Espirit des Lois’ (the spirit of the Laws) published in the year 1748.[1]

He declared it the best way to safeguard liberty.[2] This doctrine influenced the framers of the Constitution of United States and they adopted it as a part of the Constitution of United States. In the American Constitution, there is a system of checks and balances and the power vested in one organ of the government cannot be exercised by any other organ.[3] This doctrine one may also say was accepted in India too. Under the Indian Constitution, the executive powers are vested with the President according to Article 53 (1) of the Constitution of India, 1950. The legislative powers are vested in the Parliament and judicial power with the Judiciary, i.e. with the courts of India.

 

This paper is an attempt to trace the historical presence of this doctrine in India with or without its proprietors or philosophers. Efforts are made to see practical implications of this doctrine in India during the colonial rule. Though at a very elementary level, in the research into this interdisciplinary theme, it would be difficult to counter any Indian philosopher or thinker like Plato or Aristotle of the West. So looking into modern period of the history of India, the focus will be on the relationship of executive with the judiciary in India. Usually during the development of any substantive and procedural law in India, very often credit is given to the English Laws. It is humbly submitted that it  seems to the author that the seed of this conflict were sown during the British rule by the colonial masters!

 

Condition of Separation of Power during the Company’s rule in India and conflict between Executive and Judiciary

Colonization of India by the British stand outs as a unique event in the history of the world. Unlike other areas of the world the British rule in India began with the British commercial body, known as the East India Company.  Queen Elizabeth issued the Charter in 1600 by which East India Company was established in England. The same Charter also provided legislative and judicial powers to the company to maintain law and order in their settlements in India. Precisely speaking, the history of the introduction and development of Indian laws and courts began with the East India Company under the Crown’s Charter of 1600[4]. In the beginning in Surat, Bombay, Madras and Calcutta settlements, the judicial duties were performed by the Governor and its council in their respective presidencies. In these presidencies, subordinate courts were also established to deal with petty civil and criminal cases.  In the beginning the judicial functions were vested totally in the hands of executive and as soon as the expert in law was appointed in these courts, the conflict between the Judiciary and Executive began.

The first incidence of such conflict between the executive and judiciary was noticed during the early settlement at Bombay. In November 1684, a court of Admiralty was established in Bombay by the Charter of 1683.[5] The Company sent from England, Dr. St. John, a person ‘learned in civil law’ to preside in the court as Judge-Advocate.[6] He also got the authority to act as the Chief Justice of the court of Judicature at Bombay and took to himself the administration of civil and criminal justice as well.[7] St. John believed in the idea of independence and impartiality in the administration of justice. It gave rise to conflicts between the Governor and the Chief Justice. Dr. St. John’s judicial independence was interpreted by the Governor John Child as insubordination towards himself.[8] In 1685 the Governor got an opportunity to relegate Dr. St. John and the powers of Dr. St. John to act as Chief Justice of the Court of Judicature were taken away. Vaux, a member of the Bombay Council was appointed Judge to preside over this Court in place of Dr. St. John. These steps further bolstered the existing conflict between the Governor and the Chief Justice.[9]. As a consequence Dr. St John got dismissed from his post. Gradually in the Bombay Presidency, executives got complete control over the judicial administration and they abused their judicial powers to resolve their personal enmity and benefits. For instance, Rama Kamti a rich and influential merchant of Bombay was the supporter of the Company. On the charge of being in touch with Angria, a pirate chief, Kamti was arrested. Angria was harrowing the Company. The trial was held before Governor Boone and his Council[10].

 

There was no conclusive evidence whatsoever against Kamti but it was only a contrived story by a witness. The witness had been told by one dancing girl that the pirate chief Angria had told her that Kamti had written to him.[11] His servant was also tortured by cutting off his thumb to extract evidence and a statement implicating Kamti was recorded. Parker, the judge of the court of judicature objected to such type of torture to the servant. In some of the letters written to Angria appeared manipulated by forgery. Kamti was found guilty and was sentenced to an indefinite period of imprisonment. His property was confiscated and auctioned. After the death of Rama Kamti, the truth came out that the whole drama of trial was plotted by the Governor who misused his judicial power for his personal antagonism.

The condition of Calcutta settlement[12] did not differ much from that of Bombay. Here the doctrine of separation of power was totally neglected and all judicial and executive functions rested with the Collector. In the Judicial system of Calcutta, the office of Collector became a very important office. It was dealing with civil, criminal and revenue matters. It was also authorized to decide petty civil and criminal cases concerning Europeans in India.[13] The Governor and Council had appellate jurisdiction and were also empowered to decide serious criminal cases. All judicial and executive powers were exercised by the Collector and the Governor and Council. The common mode of punishment was whipping, fines, work in chains on the roads, imprisonment, banishment from the settlement and death.[14] References in M.P. Jain describes the severity of punishment; in one of the illustrative cases  punishment was rewarded as “receiving one hundred and one lashes every Friday for three months”. First punishment by non- law professionals and at the top of it brutal punishments denoted the sordid state of affairs which prevailed in the Presidency of Calcutta.

Up to the passing of the Charter of 1726, Company’s government in India hardly enjoyed any legislative power, the Charter of 1726 which was also known as Judicial Charter empowered the Governor and the Council of each Presidency town to make bye-laws, rules and ordinances and to prescribe punishments for its breach which should not be contrary to English law but agreeable to the person concerned, the same Charter also provided for the establishment of Corporation and setting up or remodeling of the Mayor’s Courts at three Presidencies of Bombay, Madras and Calcutta.[15] The Mayor and Alderman, who presided over the Mayor’s Court, were either senior servants of the Company or dependent on the Company’s pleasure for their stay in India[16]. They had neither any regular legal training nor any judicial experience to their credit.[17] The Royal Courts[18] were constituted to work independently but its relationship with the executive machinery became strained. Executive machinery expressed its hatred and jealousy against the independent attitude of the Mayor’s Court.

 

 

In Madras, a study of  the working of the Mayor’s  court during  this  period  reveals  that the  relationship  between the  Mayor’s  court  and  the Governor-in council were  not  cordial. On many occasions they were at loggerheads. Whenever any decision was made either by the Council or by the Court, the two asserted independence and superiority of one over the other giving surge to conflict between the two”.[19]

 

The conflict and clashes between the Mayor’s Court and the Governor and Council created much perplexity and chaos in the British Presidencies in India. The Company, therefore requested the British King to issue a fresh Charter so as to resolve such disputing situations. Unfortunately, the Charter of 1753 made the judicial machinery more or less a branch of the Company’s executive government and it failed to provide for the due administration of justice. The Mayor’s Court was presided over by persons who were selected from the junior servants of the Company.[20] The judges were yet again inexperienced, ignorant of law and untrained in the art of administering justice.

 

The second recorded attempt to separate judicial function from the executive was recorded during Warren Hasting’s governorship. While reorganizing Adalat System in 1780, in Moffusil[21] areas, he tried to separate revenue administration from the judiciary.  The provincial council of  revenue continued at six provincial divisions i.e. Calcutta, Murshidabad, Burdwan, Dacca, Dinajpur and Patna which looked after the collection of revenue but their judicial power to hold civil court’s was taken away. At each of these six provincial divisions, a provincial court of Diwani Adalat was established to be presided by a covenanted servant of the Company.[22]

While preparing the first civil code Warren Hasting and Sir Elijah Impey, the first Chief Justice of Supreme Court at Calcutta recognized separation of powers. This led to the establishment of independence of judiciary at Adalat level. It assisted in introduction of the rule of law in the country. Chief Justice Impey incorporated certain provisions in the civil court which specifically provided that even Zamindar’s, Talukdar’s and Farmers, employed in the collection of revenue were also under the jurisdiction of the civil courts.[23]

For the betterment of judiciary further, Supreme Courts were established at all the three Presidencies. The Regulating Act of 1773 empowered the Crown to establish, by Charter or Letter Patent, a Supreme Court of Judicature at Calcutta on the ground that the Charter of 1753 did not sufficiently provide for the due administration of justice.[24] In pursuance of these provisions, the Crown by issuing the charter of 1774 established the Supreme Court at Calcutta and appointed eminent judges to preside over the Court[25]. The Governor General and Council were also constituted under the same Act by the Crown. While functioning both of them i.e. judiciary and executive came into serious conflict amongst themselves over certain issues. Each of them claimed their superiority over the other on the bases of their appointment by his majesty. The Regulating Act flunked to define their mutual relationship and no procedure was laid down to avoid any future conflict amongst them.[26] According to the Charter, the Governor General and Council were exempted from the criminal jurisdiction of the Supreme Court except in the cases of treason and felony. The Act of Settlement of 1781 was passed to explain and amend the Regulating Act. Its preamble spoke about the doubts and difficulties with regard to the meaning of the provisions of the Act of 1773 and the Charter of 1774, of  dissentions between the judges of the Supreme Court and  the Governor General and  member of the Council, of  fear of apprehension which disquieted the  minds of inhabitants subject to the Government of Bengal.[27] With the passing of the Act of Settlement by the Parliament, the “rule of law” was broken into the favors of the Executive. Full immunity was given to the Governor and its Council from the jurisdiction of Supreme Court. Further Supreme Court was not to exercise any jurisdiction in any matter concerning the revenue or acts ordered or done in its collection according to the usage or practice of the country or the Regulation of the Governor General in Council. [28] The same provision removed one of the cause of friction between the Council and the Court. It was nothing but a policy decision of British Parliament as they realized that in order to acquire territory in India and establish the British Empire therein, it was important to support the Governor General and Council. They refused to allow the Supreme Court to introduce English principles of independence of the judiciary and the rule of law in India.[29] Ilbert criticized this policy as a legislative reversal, dilatory and expensive, Cowell viewed this as a break to impose on Indians a policy to which they were opposed and were determined to subvert.[30]

Another thread in the history of separation of power in India was provided by the Cornwallis Code of 1783. After gaining sufficient experience in Indian affairs from 1787 to 1793, Cornwallis realized that the changed conditions required major changes in the civil and revenue setups.[31] No doubt, in his reforms of 1787 Lord Cornwallis merged all the civil, criminal and revenue powers under the authority of the Collector of the district for simplicity and efficiency of revenue collection in the area, later he realized the importance of separation of power and introduced the principle of separation in the second round.[32] The policy of separating the two functions was put into practice by Regulation II of 1793, which abolished the Mal Adalat and transferred the suits triable there to the Moffusil Diwani Adalat.[33] Thus ordinary civil courts were empowered to try civil as well as revenue cases. Not only this, he also brought executive under the control of judiciary. Section 10 of Regulation III provided that not only Collectors including all other executive officers of the Government would be subject to the Court’s jurisdiction for their official acts and it was also stated that they would be personally liable for any violation of the Regulations.[34] The main object of introducing this provision was to observe the rule of law. The injured party had a remedy to approach the court against the corruption and excesses of the executive officers.[35] In the words of M.P. Jain, “Cornwallis thus took a great step forward in establishing sovereignty and rule of law and safeguarding the person and property of the people”.[36]

After separating the judiciary from the subordinate executives, the gradual efforts were made to separate judicial functions from the executive authorities of India.  Lord Wellesley, who succeeded Sir John Shore in 1798 was against the concentration of judicial, legislative and executive powers in the Governor General in Council. It was practically not possible for the Governor General to devote time to preside over the Sadar Diwani Adalat[37] and Sadar Nizamat Adalat[38]. Therefore that Regulation II of 1801 provided that the Sadar Diwani Adalat and the Sadar Nizamat Adalat were to be presided over by the three judges selected and appointed by the Governor General in Council. Further it was laid down that the Chief Judge would be a member of the Council but the Commander-in-Chief and the Governor General were not allowed to occupy the judicial post. The other two judges were to be covenanted civil servants of the Company having wide experience of judicial work in the Provincial Court’s of Appeal.[39] But during the time of Lord Minto, judicial functions were mixed with the functions performed by executives. By Regulation XV of 1807, Lord Minto increased the number of judges of Sadar Adalats[40] from three to four.[41] Out of these four judges, the Chief Judge was a member of the Governor General’s Council. In this way Lord Minto, following Lord Wellesley’s approach, mixed judicial function with legislative and executive.[42] While defending his act, Lord Minto stated that the Chief Judge was an appointed member of the Council in order to achieve economic goals but in fact, this was done so with a view to keep upper hand of executive over judiciary.  The increased number of judges at Sardar Adalats was justified on the grounds of disposing the arrears of judicial work earlier.

Another attempt to combine judicial functions with the Collector’s office was tried by William Bentinck, who was appointed as the first Governor General of
India in 1833. Though in 1821, under Lord Hastings, provisions were made for combining the functions of Collector and Magistrate,[43] though it was not extensively used. William Bentinck gave civil and revenue jurisdiction to the Collector. Cases relating to rent were transferred to the exclusive cognizance of the Collectors of revenue who were empowered to decide the suits summarily. Their decisions were final subject to a regular suit to be instituted in the civil courts. The cases relating to rent and revenue were transferred to the Collector in order to make the Collector’s task easier in the collection of revenue.[44]

During this period also, as in the past, conflicts continued between the judiciary and the executive. This was so because the regulations passed in Bengal, Madras and Bombay[45] alike emphasized on the need for the judicial functions of the Government to be administered by courts of justice distinct from the legislative and executive authority of the state. The duties of the Sadar Courts were not exclusively judicial and exercised administrative functions too; the Sadar Courts of Bengal and Madras appear to have been regarded as branches of the executive. The Presidency Governments and the Directors in London were issuing directions to the Courts and the judges being under close scrutiny were asked explanations regarding their disposals.[46] In Bombay, the Sadar Court embroiled with the Supreme Court over the problem of criminal jurisdiction in case of R. V. Pandurang Hirajee. [47] The office of judge seems not to have been held in the same high regard in Madras as in the other Presidencies. In cases pertaining to misconduct by servants of the Company and of offences against the State, the court’s opinion was treated with little respect.[48] Mylapilly case and Oakes case are its apt examples.[49] In Bengal also the conflict was apparent as can be seen from the cases of Ooman Dutt and Purtab. The decision in these cases was that if the courts were left uncontrolled, it would amount to abandoning the most sacred duty of the Supreme power.[50]

Concluding Remarks

It seems that such grim tussle between judiciary and executive whether at district level or provincial level, continued; sometimes in the form of conflict between Supreme Court and Supreme Council and sometimes between judges of Sadar Adalat and Governor Generals council. Various Governor Generals of British India during their tenure tried to establish rule of law and introduce the principle of independence of Judiciary though did not succeed completely. Probably due to their half hearted efforts as their main interest vested in the accumulation of wealth in India, implementation of such ideal principle would have created an obstacle in fulfillment of their main motive. Though we find with the establishment of High Courts in British India, slowly but surely the ideas of independence of judiciary started brewing. By the Government of India Act 1935, the administrative control of the High Courts was placed in the Provincial Government[51] It can, therefore, be ascertained that the Government of India Act, 1935 established a strong judiciary and by safeguarding the service matters of the judges of the High Courts, it strengthened the independence of judiciary prior to independent India.

 

 

 

 

 

 

 

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Bibliography

 

• Britannica Ready Reference Encyclopedia
• C.K.Takwani, Lecture on Administrative Law, Eastern  Book Publication, 2006
• C Ilbert, the Government of India, 1962
• Cowell Herbert, History and constitution of Courts  and Legislative Authority in India, 1936
• Dr. N.V. Paranjape, Indian Legal and Constitutional History, Central Law Agency, Allahabad, 2006
• J.K. Mittal, Indian Legal and  Constitutional History, Allahabad Law Agency, 2003
• M.P. Jain, Outline of Indian Legal and Constitutional History, Wadhwa, Nagpur, 2006
• V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006

 

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[1] C.K.Takwani, Lectures on Administrative Law, Eastern Book Company, Lucknow, 3^rd edn., 2006, p. 29

[2] Britanica Ready Reference Encyclopedia, Vol. IX, p.17

[3]C.K.Takwani, Lectures on Administrative Law, Eastern Book Company, Lucknow, 3^rd edn., 2006, p. 33

 

[4] J.K. Mittal, Indian Legal and  Constitutional History, Allahabad Law Agency, 2003, p.3

[5] Ibid at p. 19

[6] M.P. Jain, Outline of Indian Legal and Constitutional History, Wadhwa, Nagpur,2006, p.25

[7] Dr. N.V. Paranjape, Indian Legal and Constitutional History,Central Law Agency, Allahbad, 2006, p. 20

[8] V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006, p.49

[9] Ibid

[10] Ibid at p. 51

[11] Ibid

[12] Settlement at Calcutta was founded in 1690 when the English first settle themselves at Sutnati on the bank of Hungly and erected a fortified factory. In 1699 Calcutta was declared Presidency under the administration of Governor.

[13] V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006, p. 54

[14] M.P. Jain, Outline of Indian Legal and Constitutional History, Wadhwa, Nagpur,2006, p.32

[15]Dr. N.V. Paranjape, Indian Legal and Constitutional History ,Central Law Agency, Allahbad, 2006, p.25

[16] V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006,  p. 62

[17] Ibid

[18] Mayor’s courts were established by the Charter of King George and in whose name justice was administered in India as well, therefore these courts were also called ‘Royal Courts’.

[19] V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006, p. 63

[20] Ibid at p. 67

[21] The newly conquered area apart from the Presidencies.

[22] Ibid at p.82

[23] Ibid at p. 86

[24] J.K. Mittal, Indian Legal and  Constitutional History, Allahabad Law Agency, 2003, p. 48

[25] V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006, p.100

[26] Ibid

[27] J.K. Mittal, Indian Legal and  Constitutional History, Allahabad Law Agency, 2003, p. 64

[28] Ibid

[29] C Ilbert,The Government of India, 1962, pp.60-61; see also V.D. Kulshrestha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006, p.124

[30] Cowell, History and constitution of Courts  and Legislative Authority in India, Thacker, Spink & Co., Calcutta, 1936, p. 63

[31] V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006, p.139

[32] For administering revenue administration the collector presided in different court called Mal Adalat.

[33] Muffosil Diwani Adalat is a district court dealing with civil matters in mofussil area.

[34] V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006, p. 140

[35] Ibid

[36] M.P. Jain, Outline of Indian Legal and Constitutional History, Wadhwa, Nagpur,2006, p.130

[37] Apex court in the moffusil areadealing  with civil matters

[38] Apex court in the moffusil area dealing with criminal matters

[39] V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006, p. 147

[40] Sadar Diwani and Nizamat adalats collectively called ‘Sadar Adalats’.

[41] Ibid at p. 148

[42] Ibid at p. 149

[43] M.P. Jain, Outline of Indian Legal and Constitutional History, Wadhwa, Nagpur,2006, p. 182

[44] V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006, p. 155

[45] Bengal Regulation 2 of 1801, Madras Regulation 4 of 1806.

[46] Ibid

[47]V.D. Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006, p. 156

[48] Ibid

[49] Ibid

[50] Bombay Curier, 14^th and 21^st March,1829; for facts of these cases see chapter 5-10 of  V.D Kulshreshta, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006.

[51] V.D Kulshreshtha, Landmark in Legal and Constitutional History, Eastern Book Company, Lucknow,2006, p.171