Skip to main content

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.

1.HINDU 

 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 .

2. ISLAMIC

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.


3.COLONIAL

 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. 



4.POST INDEPENDENCE 

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.
Labels:

Comments

Post a Comment

Popular posts from this blog

Section 58B of The Advocates Act - Special provision relating to certain disciplinary proceedings

 Section 58B The Advocates Act Description (1) As from the 1st day of September, 1963, every proceeding in respect of any disciplinary matter in relation to an existing advocate of a High Court shall, save as provided in the first proviso to sub-section (2), be disposed of by the State Bar Council in relation to that High Court, as if the existing advocate had been enrolled as an advocate on its roll. (2) If immediately before the said date, there is any proceeding in respect of any disciplinary matter in relation to an existing advocate pending before any High Court under the Indian Bar Councils Act, 1926 (38 of 1926), such proceeding shall stand transferred to the State Bar Council in relation to that High Court, as if it were a proceeding pending before the corresponding Bar Council under clause (c) of sub-section (1) of section 56: Provided that where in respect of any such proceeding the High Court has received the finding of a Tribunal constituted under section 11 of the Indian B
Post a Comment
Read more

Case Laws related to Defamation in favour of ClaimantCase Laws related to Defamation in favour of Claimant. TOLLEY Vs, J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement. Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be asked to resign from his respective club. Furthermore, there was evidence that the possible adverse effects of the caricature on the claimant’s reputation were brought to the defendants’ attention. The trial judge found that the caricature could have a defamatory meaning. The jury then found in favor of the claimant. Held The House of Lords held that in the circumstances of this case – as explained by the facts – the caricature was capable of constituting defamation. In other words, the publication could have the meaning alleged by the claimant. The Lords also ordered a new trial limited to the assessment of damages. NEWSTEAD V LANDON EXPRESS NEWSPAPER LTD, (1939) Facts: A newspaper published a defamatory article about Harold Newstead. However, another person with this name brought an action in libel. He claimed that the article had been misunderstood as leading to him. The defendant newspaper recognised that they published the article. Also, they denied that they had the intention of being defamatory of him. Consequently, the claimant argued that the newspaper was under a duty. The duty was to give a clear and complete description of the correct person. Moreover, the claimant argued that the defendants were in breach of the duty. Issues: The issue in Newstead v London Express Newspaper, was if the reasonable persons would have understood the words complained of to refer to the plaintiff. Held: The Court of Appeal stated that in accordance with the current law on libel, liability for libel does not depend on the intention of the defamer; but on the fact of the defamation. Accordingly, a reasonable man, in this case a newspaper publisher, must be aware of the possibility of individuals with the same name and must assume that the words published will be read by a reasonable man with reasonable care.

  Case Laws related to Defamation in favour of Claimant.  TOLLEY  Vs,  J.S FRY & SONS LTD – (1931) Facts The defendants were owners of chocolate manufacturing company. They advertised their products with a caricature of the claimant, who was a prominent amateur golfer, showing him with the defendants’ chocolate in his pocket while playing golf. The advertisement compared the excellence of the chocolate to the excellence of the claimant’s drive. The claimant did not consent to or knew about the advertisement.   Issue The claimant alleged that the advertisement suggested that he agreed to his portrait being used for commercial purposes and for financial gain. He further claimed that the use of his image made him look like someone who prostituted his reputation for advertising purposes and was thus unworthy of his status. At trial, several golfers gave evidence to the effect that if an amateur sold himself for advertisement, he no longer maintained his amateur status and might be aske
1 comment
Read more

Rules as to delivery of goods

                             Rules as to delivery of goods Section 2(2) of Sale of Goods Act defines ‘delivery’ as a ‘voluntary transfer of possession from one person to another.’ Thus, if the transfer of goods is not voluntary and is taken by theft, by fraud, or by force, then there is no ‘delivery. Moreover, the ‘delivery’ should have the effect of putting the goods in possession of the buyer. The essence of the delivery is a voluntary transfer of possession of goods from one person to another. There is no delivery of goods where they are obtained at pistol point or theft. 1. Mode of Delivery: According to Section 33, delivery of goods sold may be made by doing anything which the parties agree shall be treated as delivery or which has the effect of putting the goods in the possession of the buyer or of any person authorized to hold them on his behalf. Delivery of goods may be actual, symbolic or constructive. 2. Expenses of Delivery: According to Section 36(5), unless otherwise agree
Post a Comment
Read more