History of Modern Indian Law
The history of modern Indian law begins with the founding of the English East India Company by Elizabeth I in 1600 and the following first English settlement in Surat in 1612. For the English in the service of the East India Company , the latter had the privilege early on to enact own law. The enormous increase in the number of British and Indians serving society and the growing volume of trade soon led to the concentration of administration in the so-called presidency towns of Madras , Bombay and Calcutta . In 1726 the English crown created special royal courts in these cities, the Mayor's Courts, which were entrusted with the jurisdiction of disputes between local Englishmen and English and Indians. These courts had to judge “according to justice and right”, which meant nothing else than English common law, including the applicable statute law , unless it obviously could not require applicability due to local conditions.
Particularly in the area of inheritance and family law, it soon became apparent that the application of English law between Indians was often inappropriate. When the Mayor's Courts were replaced at the end of the 18th century by Supreme Courts with English professional judges , these had in principle continued to apply common law . In the areas mentioned, however, the exception to the disputes between Hindus and Muslims was that Hindu law or Islamic law was applicable. If this was unknown to the English judges, it was up to them to obtain information from experts appointed for this purpose. After the collapse of the empire of the Great Mughals in the 18th century almost 60% came to the early 20th century the Indian territory under British influence, the rest was under the jurisdiction of local princes who recognized the British crown. The English also set up English provincial courts on their territory, which had to consider the religious affiliation of the contending parties in disputes over "inheritance, marriage, caste, and other religious usages and institutions". In addition, the tried and tested principle that judged “according to justice, equity, and good conscience” applied.
In 1833 the English Privy Council became the final authority for all judgments by Indian courts. Not least under his influence, English law gained a hegemonic position throughout India. In 1887 he came to the conclusion that justice, equity, and good conscience could mean nothing other than the rules of English common law:
"The matter must be decided by equity and good conscience, generally interpreted to mean the rules of English law if found applicable to Indian society and circumstances"
The often confused state of English law and the lack of clarity about the validity of a law in India aroused - not least under the influence of Bentham - in many English parliamentarians the desire to regulate the legal situation in India. In 1833 the British Parliament created a Law Commission in India , chaired by Macaulays . In a short time it was possible to codify criminal law in a penal code. The law contained largely corresponded to English law - which was still uncoded in motherland - and the French code pénal was also used . In 1859 a codification of the law of civil procedure, in 1860 of the Macaulay Penal Code and in 1861 a codification of the law of criminal procedure could be enacted by the British Crown. In 1865 the Indian Succession Act followed, which regulated the inheritance law of all Indians, for whom neither Hindu law nor Islamic law was decisive; 1872 the Indian Contract Act.
With the independence of India from Great Britain through the India Indepence Act 1947 , the former colony was divided into two states: Pakistan and India. India adopted a constitution in 1950 . In contrast to the Australian or Canadian constitution, this also contains a catalog of fundamental rights. Women were given full suffrage in 1950 . India is a federal state made up of 16 states. Legislative competence for civil law, criminal law and procedural law is assigned to the federal government and the member states by way of competing competence. In the whole of India there is therefore essentially a uniform, codified law. The laws from the colonial era basically remained in force. The style of Indian law, the peculiarities of procedural law, the position of the judge and the role of lawyers and method of reasoning remain rooted in English common law .
literature
- Bernhard Kölver, Elisabeth Müller-Luckner: Law, State and Administration in Classical India . In: Writings of the Historical College. Colloquia . tape 30 . R. Oldenbourg Verlag, 2005, ISBN 3-486-59435-4 ( historischeskolleg.de [PDF]).
Individual evidence
- ↑ a b c d e Konrad Zweigert , Hein Kötz : Introduction to Comparative Law . 3. Edition. Mohr Siebeck, Tübingen 1996, B. § 16 IV., P. 220-224 .
- ^ Office of the Upper Austrian Provincial Government, Directorate Presidium, Women's Department: 100 Years of Women's Suffrage. Linz 2018, p. 15 ( Memento of the original dated August 5, 2018 in the Internet Archive ) Info: The archive link was inserted automatically and has not yet been checked. Please check the original and archive link according to the instructions and then remove this notice. (PDF file)
