Blogs

Evolution of Law – A mark we missed!

Evolution of Law

The laws of Kritayuga are different from those of Treta Yuga and Dwapara Yuga, and the laws of Kali Yuga are different from those of all the previous ages- the laws of each age being according to the distinctive character of each age (Yuga Roopanusaratah).

Manu

Manu’s pearls of wisdom bear significance even today; with changing times and induction of new traditions and cultures, the laws have to change too.  Indian civilization is one of the world’s oldest known civilizations. The country has seen different ages with different kinds of cultures making their way into it; this entailed the laws to evolve to adapt to the traditions and culture of that particular age and society. Its diversity is owed to the millions of invasions by culturally varied rulers from the Aryans to the Turks, to the Mughals and ending with the British, all of whom gave a part of themselves to India which she has embraced and immersed itself in gracefully- for the most part. How we became a Sovereign, Socialist, Secular, Democratic Republic is the story of the evolution of law in India. 

Ancient Judicial System

Around 1500 BCE, India was a subcontinent known as ‘Hindustan’. ‘Hindu’ was originally used to refer to ethnicity and not religion. During the ancient period, Greek and Persian visitors used the term to refer to the inhabitants recognizing their ethnicity to be Hindu. During the medieval period, predominated by Islamic rule, in the country the term ‘Hindu’ was used primarily to distinguish them from the Muslim subjects. It was only during the British Rule that Hinduism was recognized as a religion. By this time, India had adopted several new religions and Hinduism became the accommodative religion that developed with constant influences from the varied cultures and religions encircling them. 

It is believed that ancient India had some sort of legal system in place even during the Bronze Age and the Indus Valley civilization. In the Vedic age, Hindustan was divided into several parts and each of these parts was ruled by a King. Surprisingly, despite the division, the law practiced in these kingdoms followed almost the same trajectory. This is because law emanated from the Vedas, Upanishads, religious texts, and other customs that were practiced and since their religious principles were untainted by any foreign influence at that point there was little difference between the laws of the dispersed kingdoms. The period spanning the Vedic Era to 1772 was known as the Classical Hindu law period.

Dharma was the principal source of law. This is why a judge was known as a ‘Dharmastha’ which meant the upholder of Dharma. Etymologically the word has Sanskrit origins and means righteousness, duty, and law.  It constitutes sacred law (Dharma), behavior (Vyavahara), character (Charitra), and edicts of the king (Rajashasana)- the 4 edifices of Dharma. 

Cognizance of Dharma

Dharma takes cognizance from 3 sources – the Vedas, the Smritis, and the Aacharas (customary laws in practice). The Dharmashastra is an important example of the Smritis, it lays down laws and religious teachings. Since the society was divided into ‘Varnas’, it laid down the rules for each varna (practiced to this day). Each individual was supposed to fulfill their duties according to their varna. The most important part of the book remains to be the discourse on ‘Vyavâhara‘- that is the law of behavior and the legal procedures related to it. It further expounds on ‘Prâyaschitta’, which throws light on the punishments meted out for disobedience.

Some of the most prominent Dharmashastra texts are Manusmriti (200BC-200CE), Yajnavalkya Smriti (200-500CE), Naradasmriti (100BC- 400CE), Visnusmriti (700-1000CE), Brihaspatismriti (200-400CE) and Katyayanasmriti (300-600CE). Various commentaries were written on each of these books in order to interpret their complex texts, while digests were texts devoted to a particular topic that may have been mentioned in any of them. 

Dharma

By 400 BC society realized the importance of statecraft and economic policy skillfully iterated by Kautilya in Arthashastra. Manusmriti enumerated the laws while Yajnavalkya accentuated the conduct that had to be followed in the society and the repercussions of deviation from them.

During this age, family disputes were resolved by the Kula; the next court of appeals was the Sreni court. Pugas were families of the same village of different castes and professions, who collectively determined a solution or punishment if the Kulas and Sreni courts failed. The eruption of issues among the artisans and traders of various classes were common and were dealt with by the Sreni courts also known as guild courts. All of these councils consisted of village elders as they were thought to be wiser than the rest because they had experienced life and its absurdities more than the others.

More pressing matters and those of criminal nature were dealt with by the King himself. He was guided by a few men preferably Brahmins learned in Dharma, Ministers, elders, representatives of the trading community, and the chief justice himself known as the Pradvivaka. The village administration was linked to the central administration through the village headman who was responsible for maintaining law and order in the village. 

Rule of Law in the olden days of India

The Dharmashastras asked the kings to look upon the people as God (Praja Vishnu) and serve them with love and reverence. Nobody, not even the King, was above law; rule of law was strictly adhered to in ancient India, so much so that if the King failed in his duty of disseminating justice, he had to forfeit his title. The Kings had to take the oath of the son of Vivasvan. (The oath of Vivasvan is the oath of impartiality: the son of Vivasvan is Yama, the God of Death, who is impartial to all living beings).

The judges had to live up to a very high standard of morals and integrity.  They had to be austere and restrained, impartial in temperament, steadfast, God-fearing, assiduous in their duties, free from anger, leading a righteous life and of good family. Unfortunately, the judicial system could not escape the vice of the Varna system and patriarchy practice at the time, which prevented the Shudras (the lowest varna) and women from being appointed as judges. It was their obligation to give their opinion ‘without fear or favor’ even if it was against the King’s conjecture.

Manusmriti posited that suits between teacher and student, husband and wife, and master and servant would not be entertained. The procedural aspects of the laws were elucidated by Narada, elaborated by Brihaspati, and further improved upon by Katyayani. Amidst the hierarchy of courts, the King’s court was the highest and had original as well as appellate jurisdiction. Arthashastra called the civil courts ‘Dharmasteya’ and the criminal courts ‘Kantakashodhana’ and further counseled that there must be three commissioners (Pradeshtarah) in these courts.

Judicial Proceedings

The court proceedings were initiated with a plaint ‘Purva Paksha‘, which was followed by a reply in the written form by the defendant ‘Uttar‘. This led to the trial ‘Kriya‘ and culminated in a ‘Nirnay‘ – the verdict. Trials took place in open courts to keep the kings and their assessors from conferring with the parties to prevent any prejudice. The Jayapatra was awarded to the party in whose favor the judgment was passed. The courts followed Prang Nyaya which is equated to the modern principle of Res Judicata. A profound feature of the ancient judicial system was they firmly believed that justice must not be passed by a single judge as it may render the decision to be arbitrary. It was understood that a judgment by two or more judges would deter corruption and result in an enhanced decision.

Documentary evidence was considered the most unimpeachable form of evidence. What is impressive is that ‘trial by ordeal’ which was a concept highly popular in the West during its judicial development, was discouraged by the Dharmashastras and was only resorted to if left out of options.

Interpretation of texts were quite well developed which was necessary as there was constant discord between Dharmashastra and Arthashastra. The courts recognized both the Dharmashastra and Arthashastra in addition to customs as legitimate sources of law. When these laws contravened each other, the courts followed the principle of Avirodha i.e. they tried to resolve the conflict without discrediting either text (known as the principle of harmonious construction today), but if this failed dharmashastra was followed probably owing to its older origins.

Brihaspati and Narada also contemplated scenarios wherein rules in the same Smriti (like Dharmashastra) or two different smritis were incoherent; it was enshrined when faced with such a conundrum, then the one that is in accordance to justice and equity must be followed or a decision based on the current customs must be taken even if it derogates the written law. Courts and laws were constantly evolving, which implies that established customs were constantly changing, and remarkably, they were also legally disestablished. It was the duty of the King himself to periodically update the customs applicable in the realm and ensure the evolution of law.

The Mauryas and the Guptas were some illustrious dynasties with such impeccable judicial systems. With the fall of these dynasties and the Turkish invasions, the ancient judicial system almost came to an end, the remnant was largely influenced by the Islamic laws and cultures.

Evolution of Law in the Medieval Period

7th century AD saw the emergence of Islam in India, with the first Muslim settlers, the Arabs alighting on the shores of the Malabar Coast. 12th century AD saw the birth of the Delhi Sultanate; the Sultan brought with him several more people making the Muslim population in India sizeable. The ramification of which was the induction of Islamic practices, traditions, and customs in the everyday lives of the people of Hindustan. 

This meant the influx of Sharia in the judicial system. Shariat or the Mohammedan Law finds its sources in the Quran, Hadis, Ijma, Sunna, etc. The Mohammedan law wasn’t inscribed in the text; the only exceptions were the 12 ordinances of Jahangir and Fatwa-E-Alamgiri digest of Muslim law by Aurangzeb. Their punishments were of a deterrent nature, they were severe and torturous. They didn’t have a political theory; their judicial administration was solely based on religious inscriptions. They held morality in the highest of regards; hence morality and religious teachings dictated the legal customs and practices. The Sultans were responsible for maintaining law and order. He had a durbar which was the senior-most civil and criminal court, with original and appellate jurisdiction. 

Muslim Invaders
Source – Social Media

During the Sultanate Period the chief justice was known as Quzi Ul Qazat while during the Mughal period, Qazi-i-Quzat was the chief justice and presided over the Diwan-I-Qaza. They were the principal judges responsible for maintaining law and order and appointing other qazis at the smaller administrative units. The Qazi was expected to be just and honest, but with the unrestrained power and discretion vested in them to interpret the law, there were many instances of their corruption.

The Sultanat period had other judicial officers like the Muftis and Mir Adils. Sadrs were located in lands given for pious purposes to decide such disputes that arose. The Mughal period had their own officers like Amir-i-dads responsible for making sure the decisions of the Qazis were followed; they also presided over secular courts (Mazalims). The Muhtasib’s judicial duty pertained to censoring public morals in accordance with Sharia and dealing with issues that did not fall under the purview of courts. The Kotwal was the official who was posted at the towns and his duties were parallel to policing duties.

The title of the officers did not give them impunity in case of disobedience; in fact, they were given harsher punishments to set an example. One of the problems of this era was that the hierarchy of courts was not clearly demarcated. The non- Muslim population was not subjected to this law and they were allowed to follow their own customs. The disputes at the village level were dealt with by Panchayats. 

The Mughal judicial system has left its imprint on our current judicial system as a very big part of our legal terminology is extensively borrowed from it; Munsifs (our civil courts of the first instance), Muddai and Muddaliya (the plaintiff and the defendant), etc. are relics of the Mughal Empire.

Evolution of Law with the advent of British Rule in India

The East India Company gained a foothold in India in 1612 after Mughal emperor Jahangir granted it the rights to establish a factory in the port of Surat. As the Company started gaining power in India, they started establishing courts in the presidency towns of Bombay, Calcutta, and Madras for the administration of justice. Initially, they tried to incorporate the customs and traditions of the locals while deciding cases, but with time the judicial decisions were made in consensus with the British ideals of justice, equity, and social behavior.

Notably, these courts were completely free from the control of the British crown, until the Charter of 1726 was passed. The Charter established Mayor Courts directly under the control of the British crown in the presidency towns. They followed English Common Law and decided cases based on that. Appeals from these courts were heard by Governor-in-Council and further appeals of higher value were heard by the King-in- Council in England. Later, Privy Council became the highest court of appeal and remained to be so for about 200 years. The number of landmark judgments passed by them is incalculable and it had a massive impact on the evolution of law in India.

British Rule

British called Indian local laws preposterous with no semblance of rule of law, which was rich coming from a country that proclaims ‘the king can do no wrong’. It is asserted that Hindustan was a nation with several thousand years of experience of various forms of judicial systems derived from different faiths and religions, all of which singularly lay down that the king was not above law. 

It was only after the Government of India Act, 1935 that India adopted the federal structure of government, which resulted in the establishment of the Supreme Court as the apex court of the country, and the institution of High Courts and subordinate courts in the different states of the country. After independence, we adopted the Constitution that makes our country what it is today. These, in addition to several other changes, paved the way for the formation of our current judicial system, and this is the story of the evolution of law in India.

Conclusion

Our judiciary is in such a pathetic state today, that as of February 2020, there are 4 crore cases pending in India, and what’s worse is that a significant portion of those involves the Government. The backlogs have only increased during these COVID times.

NO ONE, not even the lawyers and judges know all the laws in India, and half of them are probably redundant but they are in no way close to being repealed, why? Probably because even the legislature has forgotten about their existence. However, the incumbent government in a ‘clean-up’ act, has already repealed more than 1500 obsolete and redundant laws.

Despite the abundance of laws, we still have another billion issues that require the enactment of new laws but we are nowhere near such a development. Instead of resolving these glaring inefficiencies, we are happy just to sit back and proclaim that we are a diverse, secular, democratic nation where rule of law prevails not realizing we may have shifted far from this ideal.

The digital era and fast emerging social media sites have added to complexities. Most of the crimes involve the technology of some kind or the other and despite having an act to deal with cybercrimes (the IT Act, 2000), we seem to be unable to curb these crimes. With the restriction on the RTI Act, 2005 and the abandonment of ‘question hour’ some of the essential features of our legal system that made our country the largest democracy, is the country’s system of law and justice moving in the direction promised by the Constitution, the one that the freedom fighters of our very own nation fought to frame and adopt?

Perhaps John W. Spellman was right, when he opined, “In some respects, the judicial system of ancient India was theoretically in advance of our own today.”


Editor’s Note
The evolution of law in India and its legal system was a gradual one. The legal system that we have today is a result of many changes over the course of time starting from the ancient time period till the modern time period.

In this article, the author has tried to explain the legal system that existed and how did the law evolve during the different eras in India including the Vedic Era, the Medieval Era, and the British Era. The article also highlights the development and evolution of law during the various eras and the role it has played in shaping the present legal system of India. The author concludes by remarking that the present-day legal system is not in such a good state; there are a lot of unanswered issues and glaring inefficiencies. Probably, the ancient legal system was better than the modern-day legal system, in certain ways.

Leave a Reply

Your email address will not be published. Required fields are marked *