Monday, 24 January 2022

four major legal systems

 Four major legal systems in india 

When we look at each legal  system chronologically, we see ancient Hindu legal traditions, then strong invasion of a new legal tradition that is Islamic legal traditions, after weakening the British colonial legal traditions, then the  post- independence.


 Dharmashastras, the first numerous legal texts in Sanskrit , dealt with concepts of law and justice , crime and punishment, morality, duty, obligation and normative topics developed over a thousand of years. Dharmashastras content of imparting justice was determined on the person with criterion by the birth and caste of person, but there was no hierarchy of court that were existence. Each case had its own tribunal and very group- like artisans guilds of traders castes, families, sects or village had their own set of customs and set of rules.. Justice was determined on basic of status and now is considered to be primitive and discriminatory.Hindu legal tradition has hegemonic character off law and legal traditions .


The Islamic legal traditions were introduced during the 12th century . Muslim courts were established and dealt with matters of criminal, civil and family matters of the muslim population by referring to the sharia (Islamic) law, it made a point that in fact the islamic legal traditions were more clear about the coexistence of hindu customary law to govern the aspect of civil law matters among hindu Islamic legal tradition started in India, set up a different court system according to islamic law, not  taking over the Hindu legal tradition because they couldn’t as the population being largely majoritarian of  Hindu religion. Foreign rulers couldn’t understand and take over, also they couldn’t change as it would demand complete upheaval in the daily lives of the people so they adopted a policy of non intervention in the ancient legal tradition.


 The British took over the legal system due to the weak  legal structure, corruption of administrative officers led to the deteriorating justice system, especially where Islamic rule was prevalent.

Hastings wanted to keep both the traditions alive, even after the codification process we see that the personal law regime was not touched, the hindu law was not codified  at all  though they tried to translate the texts and use their precedents. Islamic law too but there was an attempt to codify by 1935 much later. However the complete codification of all customs usages completely has not happened in the islamic traditional law. We cannot see a holistic attempt in codifying the personal law regime. The remnants of legal traditions, Hindu  and islamic after British we also see that the personal laws were not codified.. 

There was a decline in the traditional judicial system and British courts were flooded with Indian cases, this led to an emergence of the legal profession and Indian lawyers were appointed to the judiciary. 


After independence, the drafted  constitution created a unified judicial system. Codification happened in 1955 and the separate hindu and muslim law was replaced by a uniform code.  There cannot be a consensus to take it forward. There are a lot of questions  to the method of drafting a uniform civil code and we need to think about what are the alternatives towards uniform civil code and what is the extent of rights with the constitutional courts to intervene with the personal laws. Now the court follows a consistent jurisprudence that the moment any law violates constitutional morality the court can intervene with personal laws. It is  also profound and interesting to understand that these usages and customs are evolving through their phase and character throughout these four periods.

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