📘 Unit I: Evolution of Law and Legal Institutions

a. Development of Personal Laws

🔷 Introduction:

Personal laws in India are those which apply to individuals based on their religion, customs, and
community traditions. These laws govern matters such as marriage, divorce, inheritance, adoption,
and succession.

🔷 Historical Background:

• India is a pluralistic society with multiple religious communities—Hindus, Muslims,

Christians, Parsis, etc.—each having distinct personal laws.
• Before British rule, personal laws were administered by community leaders or religious
heads, and the state seldom interfered.

🔷 During British Rule:

• The British, following a policy of non-interference in religious affairs, retained the

application of religious personal laws.
• Warren Hastings' Judicial Plan (1772) laid the foundation:

"In suits regarding inheritance, marriage, caste, and religious usages, the
laws of the Quran with respect to Mahomedans and those of the Shastras
with respect to Gentoos (Hindus) shall be invariably adhered to."

🔷 Hindu Law:

• Based on Dharmaśāstra texts like Manusmriti and Mitakshara.

• Two major schools: Mitakshara (prevailing in most of India) and Dayabhaga (mainly in
Bengal).
• The British relied heavily on Pandits (Hindu scholars) for interpretation, leading to
inconsistencies and later codification.

🔷 Muslim Law:

• Based on Quran, Hadith, Ijma, and Qiyas.

• Schools followed: Hanafi (most dominant in India), Shafi, Maliki, and Hanbali.
• British courts consulted Maulvis (Islamic jurists), often resulting in conflicting
judgments.

🔷 Role of Codification:

• Due to conflicting interpretations and rising litigation, codification became necessary.

 • Post-independence, India undertook major reforms in personal laws, especially:
o Hindu Code Bills (1955-56) – covering marriage, succession, guardianship, and
adoption.
o Muslim Personal Law remains largely uncodified and follows religious
doctrines.

🔷 Key Features Today:

• Separate laws for each community: Hindu, Muslim, Christian, Parsi.

• Articles 25–28 of the Indian Constitution protect religious freedom.
• Growing debate over Uniform Civil Code (UCC) under Article 44.

🔷 Conclusion:

The development of personal laws in India reflects a blend of ancient customs, colonial influences,
and post-independence reform, forming a complex legal tapestry that continues to evolve with
societal changes.

b. Development of Law in Presidency Towns

🔷 Introduction:

The Presidency towns—Calcutta, Bombay, and Madras—were centers of British power and
developed their own legal systems distinct from the rest of India.

🔷 Early Period (1600–1726):

• The East India Company initially exercised administrative and judicial powers.
• Justice was dispensed by company officials arbitrarily, often based on English
common law, personal discretion, and local customs.

🔷 Charter of 1726:

• Marked the beginning of structured legal institutions in the Presidency towns.

• King George I issued a Charter establishing Mayor’s Courts in the three towns.
• Mayor's Court:
o Dealt with civil and minor criminal matters.
o Consisted of a Mayor and 9 aldermen.
o Appeals lay to the Governor-in-Council and ultimately to the Privy Council in
England.

🔷 Charter of 1753:

• Reorganized the judicial setup due to corruption and inefficiency.

• Gave Governor-in-Council more control over the judiciary.
 • Introduced more English legal procedures into the courts.

🔷 Supreme Court Establishment:

• Regulating Act of 1773 created the Supreme Court at Calcutta (1774).

• Later, Supreme Courts were set up in Madras (1801) and Bombay (1823).
• Composition:
o Chief Justice and Puisne Judges (appointed from England).
• Applied English criminal and civil law to British subjects and Indian residents under
contract or consent.

🔷 Conflicts with Indigenous Laws:

• Tension between English legal principles and Indian social-religious customs.

• Notable case: Nand Kumar’s trial and execution (1775) highlighted misuse of English
law against native Indians.

🔷 Significance:

• Introduced concepts like:

o Rule of Law
o Writ jurisdiction
o Trial by jury
• However, also represented judicial imperialism.

🔷 Conclusion:

Law in Presidency towns laid the foundation for Anglo-Indian jurisprudence, influencing later all-
India legal developments, and balancing between colonial control and native laws.

c. Development of Civil Law in Mufassil Areas: Special Emphasis on Justice, Equity, and Good
Conscience
🔷 Introduction:

‘Mufassil’ refers to areas outside Presidency towns. Unlike the cities, the Mufassil regions lacked a
uniform legal system and relied heavily on customary laws and local institutions.

🔷 Early Administration:

• Before British rule, justice was administered by village panchayats, zamindars, and
local rulers.
• Laws were religion-based and unwritten, leading to inconsistencies.
🔷 British Judicial Plans:

• Warren Hastings’ Judicial Plans (1772–1781):

o Introduced civil and criminal courts.
o Diwani Adalats (civil) and Faujdari Adalats (criminal).
o Civil law: applied personal laws in religious matters.
o Where personal laws were silent, the courts applied "justice, equity, and good
conscience."

🔷 Meaning of "Justice, Equity, and Good Conscience":

• An equitable doctrine allowing judges to apply principles of fairness when no codified

or customary law exists.
• Often led to application of English legal principles as ‘universal standards’.
• Example: Tagore v. Tagore (1872) – property rights issue decided using English equity.

🔷 Role of Adalats:

• Established hierarchy: Mofussil Diwani Adalat, Provincial Court of Appeal, Sadr Diwani
Adalat.
• Judges were company officers, advised by Pandits and Maulvis.
• Appeals went up to the Sadr courts in Presidency towns.

🔷 Judicial Reforms:

• Cornwallis’ Reforms (1793):

o Separated judicial and executive functions.
o Improved efficiency and reduced corruption.
• 19th-century developments:
o Gradual Indianisation of judiciary.
o Creation of civil procedure laws and later codification.

🔷 Influence of English Law:

• Introduction of English evidentiary standards, contract laws, and torts.

• Equity principles used to ensure justice in absence of precedent or personal law.
• But also criticized for being alien to Indian context.

🔷 Conclusion:

The development of civil law in Mufassil reflects the gradual shift from indigenous justice to a
centralized colonial legal system, where "justice, equity, and good conscience" became a key
doctrine bridging gaps in legal frameworks.
📘 Unit II: Codification of Laws and the Establishment of High Courts

a. Charter of 1833, The First Law Commission, the Charter of 1853, The Second Law
Commission

🔷 1. Charter Act of 1833

🧭 Background:

• Prior to 1833, there were different laws for Presidency towns and Mufassil areas.
• Legal system was confusing, inconsistent, and non-uniform.
• Need for uniform codification was strongly felt.

🧾 Key Provisions of the Charter Act of 1833:

• Ended the commercial functions of the East India Company.

• Created the post of Law Member in the Governor-General's Council:
o First Law Member: Lord Macaulay.
• Empowered the Governor-General-in-Council to make laws for all British territories in
India.
• Marked the beginning of centralized legislation in India.

🧠 Significance:

• Paved the way for systematic codification of laws.

• Laid the foundation for the First Law Commission.

🔷 2. The First Law Commission (1834–1838)

🧾 Formation:

• Formed under the Charter Act of 1833.

• Headed by Lord Thomas Babington Macaulay.
• Other members: Sir John Macleod, G.W. Anderson, and F. Millet.

🧠 Objectives:

• To review and codify the laws applicable in British India.

• To create a uniform legal system replacing existing confusing mix of English, Hindu,
Muslim, and customary laws.
📜 Major Achievements:

• Drafted the Indian Penal Code (IPC):

o Submitted in 1837, enacted in 1860.
o Simple, concise, and based on logic, clarity, and equity.
• Recommended codification of laws on evidence, contracts, and crimes.

💡 Impact:

• Introduced rational, secular, and modern legal principles.

• Replaced religious and customary laws in many areas (excluding personal law).
• Became the basis of criminal law across India.

🔷 3. Charter Act of 1853

🧾 Features:

• Extended Company’s rule but with no fixed term.

• Allowed open competition for Indian Civil Services (ICS).
• Separated legislative and executive functions of the Governor-General’s Council:
o Created a separate Legislative Council.

💡 Legal Relevance:

• Reinforced the need for a permanent law-making process.

• Enabled further legal reforms and codification.

🔷 4. The Second Law Commission (1853–1856)

🧾 Composition:

• Headed by Sir John Romilly.

• Included eminent jurists like Sir Edward Ryan and Justice Whitley Stokes.

📜 Work:

• Continued the codification process started by the First Commission.

• Drafted laws on:
o Civil Procedure
o Law of Contracts
o Law of Evidence
🧠 Significance:

• Helped create foundational procedural codes:

o Civil Procedure Code (CPC)
o Indian Contract Act
o Indian Evidence Act

💬 Overall Impact of the Commissions:

• Replaced multiple inconsistent laws with comprehensive and unified codes.

• Enhanced access to justice and legal clarity.
• Based on English legal models, but adapted to Indian conditions.

b. Establishment of High Courts

🔷 Background:

• Until 1861, there were:

o Supreme Courts in Presidency towns (established under the Regulating Act and
later charters).
o Sadr Diwani and Sadr Nizamat Adalats in Mufassil areas.
• This dual system created confusion and conflict in jurisdiction and procedure.

🔷 Indian High Courts Act, 1861

🧾 Objectives:

• Abolish the dual system of Supreme and Sadr courts.

• Establish a unified and efficient judicial system in India.

🏛️ Key Provisions:

• Empowered the British Crown to establish High Courts by Letters Patent.

• Merged the Supreme Court and Sadr Adalats into one single High Court in each
Presidency.
• First three High Courts were established in:
o Calcutta – 1862
o Madras – 1862
o Bombay – 1862
⚖️ Composition:

• Chief Justice and other judges appointed by the Crown.

• Judges could be:
o Barristers (with 5 years' experience), or
o Civil servants with judicial experience in India.

⚖️ Jurisdiction:

• Original jurisdiction: Civil and criminal cases arising within the Presidency.
• Appellate jurisdiction: Appeals from lower courts across the province.
• Writ jurisdiction: Power to issue writs of habeas corpus, certiorari, etc.

💡 Importance:

• Marked the beginning of a modern judicial system in India.

• Applied uniform civil and criminal codes.
• Encouraged the growth of legal education and profession in India.

🔷 Later Developments:

• More High Courts were established:

o Allahabad High Court (1866)
o Patna (1916), Lahore (1919), Nagpur (1936), etc.
• High Courts functioned under:
o Indian High Courts Act of 1911 – expanded jurisdiction and number of judges.
o Government of India Acts (1919 & 1935) – enhanced autonomy.
• Post-independence:
o Article 214–231 of the Indian Constitution deal with High Courts.

📘 Unit III: Legal Profession, Law Reporting, and Constitutional Development in British India

a. Evolution of the Legal Profession in India

🔷 Introduction:

• The legal profession is an essential component of the administration of justice.

• Under British rule, India saw the gradual emergence of a trained, organized, and
codified legal profession, evolving from a fragmented, caste-based advisory system.
🔷 Early Legal Practitioners:

• In pre-British India, legal practice was informal:

o Hindu and Muslim law experts (Pandits and Maulvis) advised rulers and
adjudicators.
o No formal training or certification.
• The Company administration initially discouraged legal representation, viewing it as a
source of delay and corruption.

🔷 Recognition under Company Rule:

• Mayor’s Courts (1726) allowed British attorneys to appear.

• Supreme Court (from 1774) permitted practice by barristers and attorneys enrolled in
England.
• Indians were excluded from appearing in Supreme Courts.

🔷 Regulation of Indigenous Practitioners:

• In Mofussil Adalats, practice was allowed by vakils (native pleaders).

• Vakils required permission from the Sadr Diwani Adalat and were trained in personal
law.
• 1772 Plan of Warren Hastings allowed litigants to have vakils.
• 1793 Reforms by Cornwallis formally recognized vakils as court officers.

🔷 Major Milestones in Professionalization:

Year Development

Legal Practitioners Act allowed all persons of qualification, irrespective of race or

1846
religion, to practice law.

High Courts Act allowed Indians to be enrolled as advocates, attorneys, or vakils in High
1861
Courts.

Legal Practitioners Act consolidated laws relating to vakils, pleaders, and revenue
1879
agents.

Indian Bar Committees (Chamier Committee) recommended uniformity and control by

1923
High Courts.
Year Development

Advocates Act created Bar Council of India (BCI) and State Bar Councils. Unified all
1961
branches into one profession: "Advocate."

🔷 Significance:

• Emergence of Indian legal intelligentsia (e.g., Motilal Nehru, Gandhi, Ambedkar).

• Contributed to nationalist politics and law reform.
• Today, India has one of the largest legal professions in the world.

b. Law Reporting in India

🔷 Introduction:

• Law reporting means the documentation and publication of court judgments, vital for
the doctrine of precedent and legal education.
• British introduced this practice in India to ensure consistency and transparency in
judicial decisions.

🔷 Early Reporting:

• Before formal law reports, decisions were not systematically published.

• Lawyers and judges relied on memory, case notes, and oral transmission.

🔷 Major Developments:
Period Development

1830s–
Some private individuals and bar associations started compiling case reports.
1840s

1862 Official law reports began after High Courts were established.

Start of Indian Law Reports (ILR) – official, government-sanctioned reporting of

1875
High Court judgments.

1950s Supreme Court Reports (SCR) began publishing judgments of the apex court.
 Period Development

Post- Emergence of private reporters like All India Reporter (AIR), SCC, CLR, and digital
1990s platforms like Manupatra, SCC Online, etc.

🔷 Importance:

• Promotes certainty and predictability in law.

• Helps develop judge-made law through precedents (Article 141: Law declared by the
Supreme Court is binding).
• Essential for legal research, practice, and education.

c. Constitutional Development in Colonial India

🔷 Early Administration (1600–1858):

• East India Company governed through Royal Charters and parliamentary acts.
• Regulating Act (1773), Pitt’s India Act (1784), and Charter Acts (1813, 1833, 1853) laid
administrative groundwork but lacked representative government.

🔷 Government of India Act, 1858:

• After the Revolt of 1857, power transferred to the British Crown.

• Created Secretary of State for India and Council of India.
• Governor-General became Viceroy.
• Marked the beginning of direct imperial rule.

🔷 Indian Councils Act, 1861:

• Introduced legislative councils with limited Indian representation.

• Policy of including non-official Indians began.

🔷 Indian Councils Act, 1892:

• Expanded the legislative councils and allowed discussion on budget and questions.
• Start of indirect election of Indian members.
🔷 Indian Councils Act, 1909 (Morley-Minto Reforms):

• Introduced separate electorates for Muslims.

• Increased Indian representation in legislative councils.

🔷 Government of India Act, 1919 (Montagu–Chelmsford Reforms):

• Introduced diarchy in provinces:

o Transferred subjects: Health, Education, Agriculture.
o Reserved subjects: Police, Finance, Law & Order.
• Bicameral legislature at the Centre: Council of State and Legislative Assembly.
• Expanded voting rights.

🔷 Government of India Act, 1935:

• Most comprehensive pre-independence constitutional document.

• Features:
o Federal structure with autonomy to provinces.
o Diarchy at Centre.
o Bicameral legislatures in many provinces.
o Federal Court established in 1937.
• Though partially implemented, it influenced the Constitution of India (1950).

🔷 Indian Independence Act, 1947:

• Enacted by British Parliament.

• Declared India and Pakistan as independent dominions.
• Provided for Constituent Assembly to frame the Constitution.

📘 Unit IV: Constitutional History

Objective: To develop an understanding of the evolution of the modern legal and constitutional
system in India through major British legislative enactments.

a. The Indian Councils Act, 1861

🔷 Background:

• After the 1857 Revolt, the British Crown assumed direct control (Act of 1858).
• There was no Indian representation in legislative processes.
• This Act aimed to revive legislative councils and incorporate Indian members in law-
making.

🧾 Key Features:

1. Re-establishment of Legislative Councils:

o Governor-General’s Council now had a legislative function restored.
o Also allowed Provincial Legislative Councils in Bombay and Madras.
2. Inclusion of Indians:
o For the first time, Indians were nominated to Legislative Councils.
o Notable: Raja of Benaras, Maharaja of Patiala.
3. Ordinance-Making Powers:
o Governor-General could legislate by ordinance in emergencies.
4. Decentralization:
o Power was partially decentralized, allowing provinces to legislate on local
matters.

📌 Significance:

• First step towards legislative inclusion of Indians.

• Laid foundations for representative institutions.
• However, Indian members had no real power—purely advisory.

b. The Indian Councils Act, 1892

🔷 Background:

• Increasing demands by Indian National Congress (INC) for representation.

• Growing political awareness and criticism of British rule.

🧾 Key Features:

1. Increased Indian Membership:

o Number of non-official members increased in both Central and Provincial
Councils.
 2. Indirect Election Introduced:
o Not direct elections yet.
o Indians were nominated through municipal bodies, universities, etc.
3. Right to Ask Questions:
o Indian members could ask questions and discuss budgets for the first time.
o But could not vote or discuss finance in detail.

📌 Significance:

• First indirect electoral process in Indian legislature.

• Recognized political awareness among Indians.
• Still fell short of providing legislative power—criticism continued.

c. The Indian Councils Act, 1909 (Morley-Minto Reforms)

🔷 Background:

• Rising nationalist agitation and Swadeshi Movement post-1905 partition of Bengal.

• British aimed to appease moderate Indians while dividing nationalist unity.

🧾 Key Features:

1. Introduction of Elected Members:

o Introduced direct elections to legislative councils.
o More Indians elected to provincial and central councils.
2. Separate Electorates:
o Muslims were granted separate electorates—could vote only for Muslim
candidates.
o Highly controversial – sowed seeds of communal division.
3. Expanded Councils:
o Legislative councils at both provincial and central levels expanded.
o Indian members could now discuss budgets and propose resolutions.

📌 Significance:

• Created communal representation that later led to partition.

• First time Indians entered legislature through elections.
• Expanded role of Indians in governance, but limited in power.
d. The Government of India Act, 1919 (Montagu-Chelmsford Reforms)

🔷 Background:

• After WWI, Britain promised constitutional reforms.

• Montagu Declaration (1917): Gradual development of self-governing institutions.

🧾 Key Features:

1. Diarchy in Provinces:
o Division of subjects:
▪ Reserved: Law and Order, Police (Governor's control).
▪ Transferred: Health, Education (Minister’s control).
2. Bicameral Legislature at Centre:
o Council of State (Upper House) and Legislative Assembly (Lower House).
3. Provincial Autonomy:
o Indian ministers now controlled some departments.
o Voting rights extended, though still limited by property and education.
4. Establishment of Public Service Commission (PSC).

📌 Significance:

• Introduced limited responsible government in provinces.

• Created a dual system (diarchy)—but inefficient and confusing.
• Step forward in Indian representation, but criticized for retaining British dominance.

e. The Government of India Act, 1935

🔷 Background:

• Based on reports of Simon Commission (1927) and Round Table Conferences.

• Drafted to replace the dyarchy of 1919 and move towards federalism.

🧾 Key Features:

1. All-India Federation:
 o Federation of British India and Princely States (never came into effect).
2. Provincial Autonomy:
o Abolished diarchy in provinces.
o Full provincial autonomy granted; Governor bound by ministerial advice.
3. Diarchy at the Centre:
o Introduced diarchy in Central subjects—did not function effectively.
4. Bicameral Federal Legislature:
o Upper: Council of State.
o Lower: Federal Assembly.
5. Federal Court Established:
o Precursor to Supreme Court (set up in 1937).
6. Franchise Expansion:
o Around 10% of Indians got the right to vote.

📌 Significance:

• Most comprehensive colonial statute.

• Blueprint of Indian Constitution: federalism, bicameralism, All-India Services.
• Never fully implemented due to WWII and political instability.
• Used as the interim constitution of India till 1950.