Historical development of Legal system in Indian subcontinent
Chapter 1
Legal System:
The best know definition of a legal system comes from professor hart .he listed five factors had to co-exist to create a legal system. these are as follow:
Rules which either forbade certain conduct or compelled certain conduct at pain of sanctions.
Rules stating what needs to be done in certain mechanical’ areas of law such as making a contract or making a will.
Rules requiring people to compensate those whom they injured.
A system of courts to determine what the rules are, whether they have been broken and what the appropriate sanction is and
A body whose responsibility it is to make rules, and amend or repeal them as necessary
The above five factors seem to be the minimum requirements for a legal system. Considering these in the context the first one being the criminal law. and the second two being part of civil law in Bangladesh. There are parliament is the legislative body as pointed out in factor 5. (1)
Chapter 2
Legal History of India can conveniently be studied under four important periods-Hindu period, Muslim period, British period and after Independence. Hindu period extends for nearly 1500 years before and after the beginning of the Christian era. Muslim period begins with the first major invasion by Muslims in100 A.D. British period begins with the consolidation of the British power in the middle of the eighteenth century and lasts for nearly two hundred years. The modern period began with the withdrawal of the British when on, India was declared Independent.
Historical Introduction
In the late and early eleventh centuries, Mahmud of Ghazni, Muhammad of Ghor defeated Prithvi Raj at Thaneswar and marched to Delhi. Thus, by the end of the twelfth century he established a Muslim Sultanate at Delhi conquering most of northern India. A new political factor was introduced into the Afghans. From 1206 till 1526 nor less than thirty-three Turkish Kings, a muslim of Turkish race, attacked India from the north-west. Subsequently, Mahmud led a series of raids of north-west India plundered, destroyed the temples and each time returned with huge wealth. In 1191 Muhammad of Ghor attacked India, but he was defeated by Hundu Rajas led by Prithvi Raj, a Rajput hero. Next year in 1192, belonging to five dynasties, occupied the throne of Delhi. In 1398, Tamurlane or Timur, a Mongol conqueror, captured Delhi and ended the Sultanate of Delhi. The Sultanate was revived in the middle of the fifteen century. The Delhi Sultanate was characterised by dynastic instability and the Sultans were mostly engaged in a series of dynastic blood feuds and Hindu persecution. (2)
They practised a military deposition, ruthlessly weeding out the incompetent in the perpetual struggle for succession to the throne. Earlier, the Sultans certainly envisaged establishing an empire embracing the whole of India. Though they conquered northern India, the Deccan proved to be an obstacle. In 1336, the Hindu Kingdom of Vijayanagar was founded and for the next two centuries it remained as a dominant power in the South. (3)
Chapter 3
Hindu period:
Hindu period extends for nearly 1500 years before and after the beginning of he Christian era. The ancient India was divided into several independent states and the King was the supreme authority of each state. As far as the administration of justice is concerned the king was considered the fountain of justice.
Town or District Court:
Town or district was run by the government officials to administer justice under the authority of the king.
Village council:
The local village councils or kulani was constituted at village level. The council dealt with petty civil or criminal matters.
Judicial procedure:
Stages of a suit:
A suit or trial consisted of four stages- the plaint, the replay, the trial & investigation and the verdict or decision of the court.
Bench of more than one judge:
The courts were functioning on the principal that justice should not be administered by a single judge.
Ancient Hindu Social Order, Institutions and Religious Philosophy:
In determining the social order two important concepts may be stated, namely, the caste system and the joint family system.
Caste system- The caste system emerged in ancient India as unique and one of the most rigid social systems ever developed in any part of the world.1 A caste was a social group consisting solely of persons born in it. The scholars and priests of the Hindus belonged to this caste. They had in law and in fact privileges and prerogatives not held by other sections of Hindu society. 2 Whole society was divided into four main caste. The four castes were precisely and clearly defined and rules pertaining to their lawful activities and functions dominated all social activities. The Brahmins were considered to be the most superior caste.
Joint family system- The joint family system was another important institution which determined the social order amongst Hindus in ancient India. A family was regarded as a unit of the Hindu social system. 5 An ancient family included parents, children, grandchildren, uncles and their descendants, and their collaterals on the male side. This social group had common dwelling and enjoyed their estate in common. At the head of the family was the patriarch, whose authority was absolute over the members of his family.
Organization of court structure:
The king’s Court:
the king’s Court was the highest court of appeal in the state. It we also a court original jurisdiction for cases of vital importance to the state. The king as advised by Brahmins, the chief justice, & other judges.
The chief justice’s court- Next court was the chief justice’s court. It was consisted of the chief justice and a board of judges to assist the chief justice.
Special tribunal:
Sometimes separate tribunals with specified territorial jurisdiction used to be fumed among judges who were members of the board of the chief justice’s court.
Doctrine of precedent:
The decisions f the king’s court were binding on all lower courts.(5)
Evidence:
During the course of proceedings both the parties were required to prove their case by producing evidence.
Trial by ordeal:
Ordeal which was a kind of custom based on religion and faith in god was a means of proof to determine the guilt of the person. There were following kinds of ordeal- ordeal by fire, ordeal by water, ordeal by poisoin, ordeal by rice grains, ordeal by lot.(6)
Chapter 4
Muslim period:
This period starts with the invasion by Turkish Muslims in the Indian sub continent in 1100 A.D. The whole Muslim period in india in india may be divided into two sub periods- the sultanate of Delhi and the Mughal Empire.
Courts at centre:
The courts established at the capital of the Sultanate were as follows: The king’s court, Diwan –e- Mazalim, Diwan-e- Risalat, Sadre Jehan’s court, Chief justice’s court and Diwan-e- Siyasat.
Provincial courts:
In each province at the provincial headquarters foyr courts were established- Adalat Nazim-e- subah, Adalat Qazi subah, Diwan-e- Subah and Sadre-e- subah.
Legal system under the Sultanate:
The sultan or king was the supreme authority in his kingdom. The judicial system under the sultanate was divided into many parts which are as follows-courts at centre, provincial courts, District courts, parganah courts, village courts.
District courts:
In each District following courts were established- The District’s Qazi’s court, Faujder court, court of Mir Adils, Court of Kotwals.
Parganah’s Courts:
e courts of Qazi –e- parganah and kotwals were constituted at each parganah Headquarter.
Village courts:
Racg group of villages, a panchayat was functioning to look after the executive and judicial functions.
Legal system under the Mughal Administration:
During the Mughal period the Mughal Empire was considered the fountain of justice. The important courts were functioning during this period were as follows- courts at capital, provincial courts, District courts, piranha’s courts, village courts.
Provincial Courts-
The Governor’s Court (Adalat-e-Nazim-e-Subah)
The Provincial chief Appeal Court ( Qazi-e-Subah’s Court)
Provincial Chief Revenue Court (Diwan’s Court)
District Courts-
District Qazi
Faujdar Adalat
Kotwali court
Amalguzari Kachari
Parana’s Court-
Qazi-e-Parganah’s Court
Court of Kotwali
Amin-e-Parganah
Courts of Capital:
These Courts are available at capital-
The Emperor’s court
The Court of chief Justice
Chief Revenue Court
Village Courts-
Court of Village Panchayat
The Court of Zamin
Crime & punishment in the Mughal administration:
System procedure was followed by the courts during the mughal period. The judicial procedure was regulated by two Muslim codes namely Fiqh-e- Firoz Shahi & Fatwai –i- Alamgiri. Evidence was classified into three categories- a) full corroboration b) testimony of single individual c) admission including confession. The Muslim criminal law classified crimes under three categories.
1) Crime against god
2) Crime against the king
3) Crime against private individual.
There were three form of punishment –
Hadd (fixed penalties)
Tazir( Discreationary punishment)
Qisas(retaliation) and Diya ( blood money) (9)
Chapter 5
British period:
The modernization of ancient Indian law took place in the hand of the British people who came in India as a trading company under a series of Royal Charters. The pace of the development of the administration of justice In British India may be divided into following five periods:
Early administration of justice until the Charter of 1726
Administration of justice from the Charter of 1726 till the regulating act of 1773
Administration of justice from the regulating act of 1773 till the era of unification in 1861
From 1861 till the independence in 1947.
Criminal judiciary:
1)overnor -in-general
2) Court of Quarter session
3) justices of peace
Third period:
The judicial reform took the following shape in this period-
A supreme court was established in place of Mayor’s court in each presidency town of Calcutta
The supreme court consisted of a chief justice and three other puisne judges
The Supreme Court was empowered to supervise the court of collector.
The supreme court had both original, appelate, civil, criminal jurisdiction.
Fourth period:
Hs may be divided into two sub heads: from 1861 till 1935(the era of high court) and from 1935 till 1947(the era of high court and the federal court)
Judicial system after unification- 1) The supreme court, Sadar diwani court and Sadar Nizamat Adalat were abolished.
2) The high court had original criminal jurisdiction within the local limits of its civil jurisdiction.
3) The high court had supervisory jurisdiction over all subordinate courts both civil and criminal
4) Unlike the erstwhile supreme, the High court was empowered to exercise jurisdiction over revenue.
First period:
This period marks the beginning of the British involvement into the administration of justice in India. This period deals with the intervention of the company into the administration of justice in India as opposed to intervention by the British Queen.
Second period:
This period may be divided into two parts; from the charter of 1726 till the charter of 1753 and from the charter of 1753 till the regulating act of 1773.
The charter of 1726 established a corporation for each Presidency towns.
Judiciary was divided into two categories- 1) civil judiciary 2) criminal judiciary
Following courts were in the civil judiciary- 1) privy council 2) governor in council 3) Mayor’s court (10)
Criminal judiciary was divided into following courts- 1) Governor in council 2) court of Quarter session
3) Justices of the peace
The administration f justice under the charter of 1753- This period starts with the charter of 1753 issued by King George II out the deficiencies created by the operation of the previous charter of 1726.
This charter was divided into two types of judiciary-
1) civil judiciary
2) Criminal judiciary
Civil judiciary:
1)rivy council
2) Governor in general
3) Mayor’s court
4) Court of Requests.
Chapter 6
Pakistan Period:
As mentioned earlier, with the adoption of the constitution of 1956 the highest in Pakistan became the supreme court of Pakistan and the high courts were retained at provinces as earlier. The subordinate courts were the same as in 1947. After the adoption of the constitution of 1962 the whole judicial structure was the same as under the constitution of 1956. (13)
Chapter 7
Next Phase:
While the great Mughal was ruling in Delhi, there appeared on the Indian scene a phenomenon almost unparalleled in the history of world. After a brief episode of Portuguese domination, a handful of adventurers from the distant island of England in the Atlantic, Some of those who were sent out from England to guide the destines of India were actuated by the loftiest of motives, while others were definitely hostile to Indian interests. forming the English East India Company, came India as a trading body which possessed some sovereign prerogatives for the purpose of trade and became transformed into a sovereign body, “the trade of which was auxiliary to its sovereignty”. But disinterest as were in the petty squabbles between individual, they could evolve an efficient system of administration of justice in which fair play predominated and which we have inherited. But English justice, as we shall see, was always pragmatic even in their own country and necessarily so in India. Some of rules evolved to protect the ruler were certainly not conducive to a proper administration of justice. The British period, however, constituted a major and fundamental breakthrough from our past practices and traditions.
Legal System:
The best know definition of a legal system comes from professor hart .he listed five factors had to co-exist to create a legal system. these are as follow:
Rules which either forbade certain conduct or compelled certain conduct at pain of sanctions.
Rules stating what needs to be done in certain mechanical’ areas of law such as making a contract or making a will.
Rules requiring people to compensate those whom they injured.
A system of courts to determine what the rules are, whether they have been broken and what the appropriate sanction is and
A body whose responsibility it is to make rules, and amend or repeal them as necessary
The above five factors seem to be the minimum requirements for a legal system. Considering these in the context the first one being the criminal law. and the second two being part of civil law in Bangladesh. There are parliament is the legislative body as pointed out in factor 5. (1) Chapter 2
Legal History of India can conveniently be studied under four important periods-Hindu period, Muslim period, British period and after Independence. Hindu period extends for nearly 1500 years before and after the beginning of the Christian era. Muslim period begins with the first major invasion by Muslims in100 A.D. British period begins with the consolidation of the British power in the middle of the eighteenth century and lasts for nearly two hundred years. The modern period began with the withdrawal of the British when on, India was declared Independent.
Historical Introduction
In the late and early eleventh centuries, Mahmud of Ghazni, Muhammad of Ghor defeated Prithvi Raj at Thaneswar and marched to Delhi. Thus, by the end of the twelfth century he established a Muslim Sultanate at Delhi conquering most of northern India. A new political factor was introduced into the Afghans. From 1206 till 1526 nor less than thirty-three Turkish Kings, a muslim of Turkish race, attacked India from the north-west. Subsequently, Mahmud led a series of raids of north-west India plundered, destroyed the temples and each time returned with huge wealth. In 1191 Muhammad of Ghor attacked India, but he was defeated by Hundu Rajas led by Prithvi Raj, a Rajput hero. Next year in 1192, belonging to five dynasties, occupied the throne of Delhi. In 1398, Tamurlane or Timur, a Mongol conqueror, captured Delhi and ended the Sultanate of Delhi. The Sultanate was revived in the middle of the fifteen century. The Delhi Sultanate was characterised by dynastic instability and the Sultans were mostly engaged in a series of dynastic blood feuds and Hindu persecution. (2)
They practised a military deposition, ruthlessly weeding out the incompetent in the perpetual struggle for succession to the throne. Earlier, the Sultans certainly envisaged establishing an empire embracing the whole of India. Though they conquered northern India, the Deccan proved to be an obstacle. In 1336, the Hindu Kingdom of Vijayanagar was founded and for the next two centuries it remained as a dominant power in the South. (3)
Chapter 3
Hindu period:
Hindu period extends for nearly 1500 years before and after the beginning of he Christian era. The ancient India was divided into several independent states and the King was the supreme authority of each state. As far as the administration of justice is concerned the king was considered the fountain of justice.
Town or District Court:
Town or district was run by the government officials to administer justice under the authority of the king.
Village council:
The local village councils or kulani was constituted at village level. The council dealt with petty civil or criminal matters.
Judicial procedure:
Stages of a suit:
A suit or trial consisted of four stages- the plaint, the replay, the trial & investigation and the verdict or decision of the court.
Bench of more than one judge:
The courts were functioning on the principal that justice should not be administered by a single judge.
Ancient Hindu Social Order, Institutions and Religious Philosophy:
In determining the social order two important concepts may be stated, namely, the caste system and the joint family system.
Caste system- The caste system emerged in ancient India as unique and one of the most rigid social systems ever developed in any part of the world.1 A caste was a social group consisting solely of persons born in it. The scholars and priests of the Hindus belonged to this caste. They had in law and in fact privileges and prerogatives not held by other sections of Hindu society. 2 Whole society was divided into four main caste. The four castes were precisely and clearly defined and rules pertaining to their lawful activities and functions dominated all social activities. The Brahmins were considered to be the most superior caste.
Joint family system- The joint family system was another important institution which determined the social order amongst Hindus in ancient India. A family was regarded as a unit of the Hindu social system. 5 An ancient family included parents, children, grandchildren, uncles and their descendants, and their collaterals on the male side. This social group had common dwelling and enjoyed their estate in common. At the head of the family was the patriarch, whose authority was absolute over the members of his family.
Organization of court structure:
The king’s Court:
the king’s Court was the highest court of appeal in the state. It we also a court original jurisdiction for cases of vital importance to the state. The king as advised by Brahmins, the chief justice, & other judges.
The chief justice’s court- Next court was the chief justice’s court. It was consisted of the chief justice and a board of judges to assist the chief justice.
Special tribunal:
Sometimes separate tribunals with specified territorial jurisdiction used to be fumed among judges who were members of the board of the chief justice’s court.
Doctrine of precedent:
The decisions f the king’s court were binding on all lower courts.(5)
Evidence:
During the course of proceedings both the parties were required to prove their case by producing evidence.
Trial by ordeal:
Ordeal which was a kind of custom based on religion and faith in god was a means of proof to determine the guilt of the person. There were following kinds of ordeal- ordeal by fire, ordeal by water, ordeal by poisoin, ordeal by rice grains, ordeal by lot.(6)
Chapter 4
Muslim period:
This period starts with the invasion by Turkish Muslims in the Indian sub continent in 1100 A.D. The whole Muslim period in india in india may be divided into two sub periods- the sultanate of Delhi and the Mughal Empire.
Courts at centre:
The courts established at the capital of the Sultanate were as follows: The king’s court, Diwan –e- Mazalim, Diwan-e- Risalat, Sadre Jehan’s court, Chief justice’s court and Diwan-e- Siyasat.
Provincial courts:
In each province at the provincial headquarters foyr courts were established- Adalat Nazim-e- subah, Adalat Qazi subah, Diwan-e- Subah and Sadre-e- subah.
Legal system under the Sultanate:
The sultan or king was the supreme authority in his kingdom. The judicial system under the sultanate was divided into many parts which are as follows-courts at centre, provincial courts, District courts, parganah courts, village courts.
District courts:
In each District following courts were established- The District’s Qazi’s court, Faujder court, court of Mir Adils, Court of Kotwals.
Parganah’s Courts:
e courts of Qazi –e- parganah and kotwals were constituted at each parganah Headquarter.
Village courts:
Racg group of villages, a panchayat was functioning to look after the executive and judicial functions.
Legal system under the Mughal Administration:
During the Mughal period the Mughal Empire was considered the fountain of justice. The important courts were functioning during this period were as follows- courts at capital, provincial courts, District courts, piranha’s courts, village courts.
Provincial Courts-
The Governor’s Court (Adalat-e-Nazim-e-Subah)
The Provincial chief Appeal Court ( Qazi-e-Subah’s Court)
Provincial Chief Revenue Court (Diwan’s Court)
District Courts-
District Qazi
Faujdar Adalat
Kotwali court
Amalguzari Kachari
Parana’s Court-
Qazi-e-Parganah’s Court
Court of Kotwali
Amin-e-Parganah
Courts of Capital:
These Courts are available at capital-
The Emperor’s court
The Court of chief Justice
Chief Revenue Court
Village Courts-
Court of Village Panchayat
The Court of Zamin
Crime & punishment in the Mughal administration:
System procedure was followed by the courts during the mughal period. The judicial procedure was regulated by two Muslim codes namely Fiqh-e- Firoz Shahi & Fatwai –i- Alamgiri. Evidence was classified into three categories- a) full corroboration b) testimony of single individual c) admission including confession. The Muslim criminal law classified crimes under three categories.
1) Crime against god
2) Crime against the king
3) Crime against private individual.
There were three form of punishment –
Hadd (fixed penalties)
Tazir( Discreationary punishment)
Qisas(retaliation) and Diya ( blood money) (9)
Chapter 5
British period:
The modernization of ancient Indian law took place in the hand of the British people who came in India as a trading company under a series of Royal Charters. The pace of the development of the administration of justice In British India may be divided into following five periods:
Early administration of justice until the Charter of 1726
Administration of justice from the Charter of 1726 till the regulating act of 1773
Administration of justice from the regulating act of 1773 till the era of unification in 1861
From 1861 till the independence in 1947.
Criminal judiciary:
1)overnor -in-general
2) Court of Quarter session
3) justices of peace
Third period:
The judicial reform took the following shape in this period-
A supreme court was established in place of Mayor’s court in each presidency town of Calcutta
The supreme court consisted of a chief justice and three other puisne judges
The Supreme Court was empowered to supervise the court of collector.
The supreme court had both original, appelate, civil, criminal jurisdiction.
Fourth period:
Hs may be divided into two sub heads: from 1861 till 1935(the era of high court) and from 1935 till 1947(the era of high court and the federal court)
Judicial system after unification- 1) The supreme court, Sadar diwani court and Sadar Nizamat Adalat were abolished.
2) The high court had original criminal jurisdiction within the local limits of its civil jurisdiction.
3) The high court had supervisory jurisdiction over all subordinate courts both civil and criminal
4) Unlike the erstwhile supreme, the High court was empowered to exercise jurisdiction over revenue.
First period:
This period marks the beginning of the British involvement into the administration of justice in India. This period deals with the intervention of the company into the administration of justice in India as opposed to intervention by the British Queen.
Second period:
This period may be divided into two parts; from the charter of 1726 till the charter of 1753 and from the charter of 1753 till the regulating act of 1773.
The charter of 1726 established a corporation for each Presidency towns.
Judiciary was divided into two categories- 1) civil judiciary 2) criminal judiciary
Following courts were in the civil judiciary- 1) privy council 2) governor in council 3) Mayor’s court (10)
Criminal judiciary was divided into following courts- 1) Governor in council 2) court of Quarter session
3) Justices of the peace
The administration f justice under the charter of 1753- This period starts with the charter of 1753 issued by King George II out the deficiencies created by the operation of the previous charter of 1726.
This charter was divided into two types of judiciary-
1) civil judiciary
2) Criminal judiciary
Civil judiciary:
1)rivy council
2) Governor in general
3) Mayor’s court
4) Court of Requests.
Chapter 6
Pakistan Period:
As mentioned earlier, with the adoption of the constitution of 1956 the highest in Pakistan became the supreme court of Pakistan and the high courts were retained at provinces as earlier. The subordinate courts were the same as in 1947. After the adoption of the constitution of 1962 the whole judicial structure was the same as under the constitution of 1956. (13)
Chapter 7
Next Phase:
While the great Mughal was ruling in Delhi, there appeared on the Indian scene a phenomenon almost unparalleled in the history of world. After a brief episode of Portuguese domination, a handful of adventurers from the distant island of England in the Atlantic, Some of those who were sent out from England to guide the destines of India were actuated by the loftiest of motives, while others were definitely hostile to Indian interests. forming the English East India Company, came India as a trading body which possessed some sovereign prerogatives for the purpose of trade and became transformed into a sovereign body, “the trade of which was auxiliary to its sovereignty”. But disinterest as were in the petty squabbles between individual, they could evolve an efficient system of administration of justice in which fair play predominated and which we have inherited. But English justice, as we shall see, was always pragmatic even in their own country and necessarily so in India. Some of rules evolved to protect the ruler were certainly not conducive to a proper administration of justice. The British period, however, constituted a major and fundamental breakthrough from our past practices and traditions.
* * *
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