Indian Law in 1911

INDIAN LAW

The law in force in British India may be conveniently divided into five heads: (1) The law expressly made for India by the British parliament, or by the sovereign. (2) English law in force in India though not expressly made for India. (3) The law made by persons or bodies having legislative authority in India. (4) Hindu law. (5) Mahommedan law. The first three of these are frequently described as Anglo-Indian law. They are with rare exceptions territorial, i.e. they apply generally, either to the whole of India, or to a given area, and to all persons within those limits. The last two are personal, i.e. they apply only to persons who answer a given description.

1. The Law expressly made for India by the British Parliament or the Sovereign

There are in existence about 120 acts of parliament containing provisions relating to India. The greater portion of these provisions relate to what may be called constitutional law, such as, the power of the East India company, the transfer of these powers to the crown, the powers of the secretary of state, of the Indian council, of the council of the governor-general, and of the other councils in India, and so forth. The law made by the sovereign consists mainly of charters granted to the four high courts of Bengal, Madras, Bombay and the North-West Provinces. A great many charters were granted to the East India Company, and some of the earlier ones contained very important provisions as to the legislative and judicial authority to be exercised in India, but these provisions are now obsolete.

2. The English Law in force in India though not made expressly for India

A considerable portion of the law of England, both statute law and common law, was introduced into India by the assumption that when courts of justice were established in India, to be presided over by English judges, it followed that they were to administer English law as it stood at the time of the granting of the charter so far as it was applicable. There has been considerable doubt as to when this assumption ceased, but the date generally assigned for this purpose is 1726. It only applied, however, to courts established before this date under the direct authority of the crown, that is to the charter courts of Calcutta, Madras and Bombay, and at a very early date (21 Geo. III. c. 70) the jurisdiction of these courts was limited, practically, to the inhabitants of the presidency towns and to suitors of European origin residing elsewhere. Moreover, even in the presidency towns, these courts were directed to apply to Hindus and Mahommedans their own laws in regard to all matters of inheritance and succession, family law and matters relating to religion or caste. In the territories outside the presidency towns where courts of justice were established by the East India company, acting under the authority of the emperor of Delhi, the only assumption that could be made as to the law to be administered was that it was the law already in existence. Acting on this assumption the company’s courts administered the Mahommedan criminal law which was the general law of the subjects of the Mogul emperor: the revenue system remained, as did also the existing relations of zemindar and ryot, i.e. of the cultivator and of the persons intermediate between the state and the cultivator. In regard to matters of family law, inheritance and succession, religion and caste the company’s courts were expressly enjoined to apply the Hindu law to the Hindus, and the Mahommedan law to the Mahommedans. Of course it was also the duty of these courts to recognize well-established local usages. Thus practically all the topics of litigation at that time likely to arise were provided for. It was as time went on, when by intercourse with Europeans new ideas, and with them new wants, sprang up in the native populations, that gaps came to be discovered in the law. To such cases the judges had been vaguely told that they were to apply “the rules of equity and good conscience,” which they naturally sought in the English law. The matters in which the notions of English law have most affected India are the power of completely separating the ownership of property from the enjoyment of it by means of trusts, the testamentary power, the creation of life estates, the substitution of one owner of property for another on the happening of some future event, the rules of evidence, criminal law, civil and criminal procedure and the subordination of the executive to the ordinary law. Upon all of these topics the law of India is mainly English. Not that the whole of it rests upon the slender authority above described. Much of it, as will appear presently, was introduced by the Indian legislatures; much of it also, although originally introduced by the courts, has since received legislative sanction.

3. The Law made by Persons or Bodies in India having Legislative Authority

As a general proposition it would be true to say that wherever a British authority has legislated in India it has been largely influenced by the English law. The legislative authorities in India are very numerous. Those now existing are (1) the governor-general of India in council; (2) the governor of Madras in council; (3) the governor of Bombay in council; (4) the lieutenant-governor of Bengal in council; (5) the lieutenant-governor of the North-Western Provinces in council; (6) the lieutenant-governor of the Punjab in council; (7) the lieutenant-governor of Burma in council; (8) the lieutenant-governor of Eastern Bengal and Assam in council. No legislative enactments of any kind passed in India before 1793 are now in force. In Bengal in the year 1793 forty-eight regulations (as they were then called) were passed in a single day, and it was assumed that all previous legislation in Bengal was thereby superseded. Similar regulations were passed about the same time, and the same assumption was made, in Madras and Bombay. As new territories were acquired by the government of India, the existing regulations were in some cases extended to them, but in other cases this was thought not to be convenient, and for these territories the governor-general in council issued general orders, not in the regular way of legislation but in exercise of his executive power. Hence the distinction between “regulation” and “non-regulation” provinces. Any doubt as to the validity of the orders so made was removed by the Indian Councils Act 1861. The term “regulations” was dropped after the passing of the 3 & 4 Will. IV. c. 85 (1833), and since that time the word “Acts” has been in use. Acts are referred to by the year of their enactment.

Several attempts at extensive legislation in India, intended apparently as a step towards a general codification of the law, have been made. The act of 1833 above mentioned directed the issue of a commission in India which was intended to survey the whole field of law and to suggest such alterations as appeared desirable. Of this commission Lord Macaulay was a member. It never attempted to perform the large task indicated in its appointment, but it produced a draft of the Penal Code (Act XIV. of 1860). It was not, however, until 22 years after Lord Macaulay left India that the Penal Code became law, and in the meantime the draft had been a good deal altered. The Penal Code is, undoubtedly, the most important, as it is also the most successful, effort of Indian legislation. It is to a large extent a reproduction of the English law of crimes. But there are some important differences; for whereas there are in English law no authoritative definitions of such important crimes as murder, manslaughter, assault and theft, and many kindred offences, the Penal Code seeks to define every crime with precision. Moreover, the Penal Code imports into the definition of nearly every crime, and, therefore, into the charge on which the accused is tried, words the purport of which is to describe the state of mind of the accused at the time the alleged act was committed, thereby making it necessary to ascertain at the trial what that state of mind was. This in England is not necessary to anything like the same extent. For example in England, in order to charge a man with manslaughter all that is necessary to allege is that A killed B. But in order to charge a man with culpable homicide it is necessary to state with much particularity what the accused intended, or what he knew to be likely to happen when he did the act; and this condition of mind must be proved at the trial. It is true that this proof is facilitated by certain presumptions, but nevertheless it sometimes presents considerable difficulty. On the other hand, in dealing with offences against property the authors of the Penal Code have cleared away entirely the difficulties which have long beset the English law as to how to deal with a man who, having become possessed of property, dishonestly misappropriates it. English lawyers have tried to squeeze as many of these cases as they can into the crime of larceny. The Penal Code simply makes dishonest misappropriation a crime in itself.

In 1853 and again in 1861 commissions were appointed in England to draw up a body of laws for India “in preparing which the English law should be used as a basis,” but the only direct result of these two commissions was the Indian Succession Act (Act X. of 1865). But as Hindus and Mahommedans are excluded from the operation of this act its application is limited. The wills of Hindus are provided for by Act XXI. of 1870. Two important acts, however, were passed in India shortly after the attempt to legislate for India through commissions sitting in England came to an end, namely the Evidence Act (Act I. of 1872) and the Contract Act (Act IX. of 1872). Both these acts have been a good deal criticized. Two other important acts passed somewhat later are the Transfer of Property Act (Act IV. of 1882) and the Trusts Act (Act IV. of 1882). These acts are all substantially reproductions of the English law.

The law relating to land revenue has been the subject of innumerable regulations and acts of the Indian legislature. A description of the revenue systems prevailing in India will be found in the article on India. The law which governs the relation of ryots (i.e. cultivators) to those who for want of a better term we must call landlords has grown to a considerable extent out of the revenue system. The view which was at first taken of this relation was unfortunately affected by English notions of the relation of landlord and tenant, but this view has been considerably modified in favour of the tenant by recent legislation.

Books of Reference on Anglo-Indian Law.—Morley, Analytical Digest (1849); Stokes, Anglo-Indian Codes (1887); Ilbert, Government of India (1906), which contains a very useful Table of Acts of Parliament and Digest of their contents; Strachey, India, its Administration and Progress (1903); Baden-Powell, Land Systems of British India (1892); Wigley, Chronological Tables of Indian Statutes (Calcutta, 1897).-1911 Encyclopædia Britannica, Volume 14