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Indian law

Excerpt from the Encyclopaedia Brittanica

the legal practices and institutions of India

Last updated - Tuesday, 08-Feb-2005 11:16:38 EST

The general history of law in India is a well-documented case of reception as well as of grafting. Foreign laws have been "received" into the Indian subcontinent--for example, in the demand by the Hindus of Goa for Portuguese civil law; and the enactment by independent India of statutes such as the Estate Duty Act (1953), the Copyright Act (1957), and the Merchant Shipping Act (1958), which substantially reproduce English models. Foreign laws have also frequently been "grafted" upon indigenous laws, as is seen in both Anglo-Muslim and Hindu law. Legal institutions introduced by foreign governments were accepted readily by the Indians, either because they were compatible with existing trends or because they met new needs. Independence in 1947 brought an intensification of these processes.

Indian law thus draws on a number of sources. The Hindu law system began with the Vedas and contemporary non-Aryan customs 3,000 years ago. Slowly, it evolved through blending, comparison, and analysis. After the Arab invasions in the 8th century AD, Islamic law was introduced in some areas, particularly in the north. The English common law is the residual law in the high courts of Bombay, Calcutta, and Madras; and, at times with the aid of relevant British statutes, it is the residual law also in all other jurisdictions representing the old East India Company's courts, in which, since 1781, "justice, equity and good conscience" have supplied the rule of law when no Indian statute or rule of personal law (e.g., Hindu law) covered the point. The Portuguese and French used their own laws in their colonies. In British India some British statutes applied, and a few have remained in force. All powers adapted their laws to local conditions, and the famous Anglo-Indian codes, passed in India at intervals from 1860 to 1882, reflected the influence of French and American as well as English and Anglo-Indian models. During that period Roman, or civil, law and continental juridical theory were widely cited, particularly in the Madras high court, to give India the benefit of the best law available; but through codification and other influences this source was soon exhausted. Interpretation of the constitution has resulted in the introduction of some American principles, and welfare and industrial statutes are construed in the light of case law decided elsewhere in the Commonwealth. Western influence is also present in the treatment of personal law.

Generally speaking, Hindu law is the personal law applying to 85 percent of the population and constituting the main juridical product of Indian civilization. The word Hindu does not imply a strict religious orthodoxy and is more ethnic than creedal in its emphasis. Nevertheless, since independence India has aimed at abolishing the personal laws in favour of a civil code (constitution, article 44), which would unify, as far as practicable, the diverse Hindu schools and customs applicable to the various communities. Modern Hindu law is the creation of the Hindu Marriage Act (1955), and of the Hindu Minority and Guardianship Act, Hindu Succession Act, and Hindu Adoptions and Maintenance Act (all of 1956). Until 1955-56 Hindus were entitled to claim exemption from the personal law if a custom could be proved of sufficient certainty, continuity, and age and was not contrary to public policy. Very little scope is now allowed to custom. As an example of the changes, the Special Marriage Act (1954) provided that any couple might marry, irrespective of community, in a civil, Western-type manner, and their personal law of divorce and succession automatically would become inapplicable. In the new divorce law they have, in addition, a right of divorce by mutual consent after they have lived apart for a year and have waited an additional year.

Indian criminal law, on the other hand, has been very little changed since the Indian Penal Code was enacted in 1861. Thomas Babington Macaulay's original draft of that code, which remains its nucleus, was not based on the contemporary English law alone, and many of the definitions and distinctions are unknown to English law, while later developments in English law are not represented. Yet Indian courts frequently consult English decisions in order to construe sections of the code. In spite of the fact that the wording of the code, when strictly construed, enables many wrongdoers to escape, India has modified it in only marginal respects. This is remarkable in view of the extreme rarity of the code's coincidence with the criminal laws in force in India prior to 1861. The Criminal Procedure Code (1898), by contrast, is a true Anglo-Indian amalgam and has been amended further to suit peculiarly Indian conditions and the climate of opinion.

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