Posted by “Dharma and the Present Legal System in India: A Brief Analysis. ”
By Vishal Kumar Singh, School of Law and Governance, Central University of South Bihar.
About the author:
Vishal Kumar Singh is a third year law student pursuing his five year B.A. LL.B.(H.) degree from School of Law and Governance, Central University of South Bihar.
Dharma and the Present Legal System in India: A Brief Analysis
The concept of Dharma or Law in ancient India was inspired by vedas which contained rules of conduct and rites compiled in the Dharma Sutras and were practiced in a number of branches of the Vedic School. Their principle contents addresses the duties of people at various stages of life,the rights and duties of kings and judicial matters.These were the basics of Hindu law.The earliest document throwing light on the theory of jurisprudence,which forms a major part of the practical governance,is the Arthashastra of Kautilya dating back to circa 300BC.During the first seven centuries of Christian era,there evolved a number of Dharma Shastras which dealt extensively with Manu,Yajnavalkya,Narda and ParasharaSmrities etc.
In medieval India,the religious leaders endeavored to transform Islam into a religion of law,but as a custodian of justice,the rulers made the Sharia,a court subservient to their sovereign power.Theoretically the rulers had to be obedient to the sharia and the history speaks about certain cases where the sovereign unresistingly submitted to the Qazi’sdecision.The rulers sat in a court known as Mazalim(complaints).According to IbnBatuta,Mohd.BinTughlaq,ruler of the Tughlaq dynasty,heard complaints each Monday and Thursday.From 13th century onwards,an officer known as Amir-i-dad presided over the secular court in Sultan’s absence.He was also responsible for implementing Qazi’s decisions and drawing their attention to the cases which constituted the miscarriage of justice.The Muftis were the expert on sharia law and gave fatwas (formal legal rulings) on disputes referred to them by members of public or Qazis.The chief judge of Sultanate was known as the Qaziulmumalikaslo known Qaziulquzat.Later on,during the Mughal period,Akbar also appointed two officers called Tuibegis to supervise the adherence of law and fixed a nominal amount as their fees.The same system followed till the British took over India.
The promulgation of the Regulating Act of 1773 by the King of England paved the way for establishment of the Supreme court of Judicature at Calcutta.The letter of patent was issued on 26th March 1774 to establish the Supreme court of Judicature at Calcutta,as a court of record,with full power and authority to hear and determine all complaints for any crimes and also to entertain,hear and determine any suits and actions against any of His Majesty’s subjects in Bihar,Bengal and Orrisa.The Supreme court at Madras and Bombay were established by King George-III on 26th December 1800 and on 8th December 1823 respectively.The India High courts Act 1861 was enacted to create High Courts for various provinces and abolished Supreme courts at Calcutta,Madras and Bombayand also the sadaradalats in Presidency towns.These High courts had the distinction of being the highest courts for all cases till the creation of the Federal court of India under the Government of India Act-1935.The federal court had the jurisdiction to solve disputes between provinces and the federal states and hear appeal against the judgments from High Courts.
After India attained the independence in 1947,the constitution of India came into being on 26th January,1950,the Supreme court also came into existence and its first sitting was held on 28th January,1950.The law declared by the supreme court is binding upon all the courts within the territory of India.It has power of judicial review to strike down the legislative and executive action contrary to the provisions and the scheme of the constitution,the distribution of power between union and the states or inimical to the fundamental rights guaranteed by the constitution.
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