Indian Legal System

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INDIAN LEGAL SYSTEM
NAME: ZEEL MATROJA
GROUP: 20LL8A

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Hindu law refers to the system of personal laws (marriage, adoption, inheritance, etc.),
traditionally derived from Hindu texts and traditions, that shaped the social practice of
Hindu communities. In Vedic times, Hindu law was the legal system described and
imagined in Dharmaśāstra texts. Classical Hindu law, brings the realm of legal practice
together with the scholastic tradition of Dharmaśāstra by defining Hindu law as a
usable label for myriad localized legal systems of classical and medieval India that were
influenced by and in turn influenced the Dharmaśāstra tradition. Such local laws never
conformed completely to the ideals of Dharmaśāstra, but both substantive and
procedural laws of the tradition did impact the practical law, though largely indirectly.

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The genesis of Hindu law has gone through many periods of growth beginning in early India (ancient
Hindu law) through the Dharmaśāstra, to colonial appropriations (Anglo-Hindu law) to the
establishment of the modern personal law system (modern Hindu law).
Sources of Hindu Law
There are usually three principal sources of dharma in the Dharmaśāstra texts: 1) śruti,
literally "what is heard," but referring to the Vedas or Vedic literature, the liturgical and
praise hymns of the earliest Hindu tradition, 2) smŗti, literally "what is remembered," but
referring to the Dharmaśāstra texts as well as other Sanskrit texts such as the Purāņas and
the Epics (Mahābhārata and Rāmāyaņa), and 3) ācāra, literally "practice," but referring to the
norms and standards established by educated people who know and live by the first two
sources of dharma. In some texts, another source of dharma, ātmatuşţi, "what is pleasing to
oneself," is also given, but this source is not widely discussed and is never considered a
primary source of dharma

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Important legal concepts in Dharmaśāstra
vyavahāra - In Dharmaśāstra, vyavahāra refers to the matters justiciable before a formal
court of the king or constituted by the king. Vyavahara has two principal sections - legal
procedure (vyavahāra-mātŗkā) and the traditional eighteen titles of law (vyavahāra-pada).
ṛṇa - debt
svatva - property
daṇḍa - threat of punishment
prāyaścitta - penance, expiation

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During India's history, it has seen several civilizations and rulers like the ancient Indus valley
civilization to Vedic Age era to Haryanka and Mauryan dynasties in North followed by
Sangam and Chola dynasties in southern India and then the Islamic Delhi Sultanate empire
followed by Mughals and finally The British Empire in India, whose legal system and
machinery we still use in India.
After the Independence of India on 15th August 1947, India formed a constituent assembly to
frame its constitution, which adopted the principles of Democracy, Secularism, Fraternity, and
most importantly the Right to Equality for every individual in the country, but we continued the
same legal system and infrastructure and also most of the laws which are currently forced in
India are from the British era. The constitution has borrowed many of the principles from foreign
Constitutions like the parliamentary form of government and Rule of law is taken from United
Kingdom (UK) and legal systems, even the majority of its structure is taken from the
Government of India Act, 1935 passed by the British parliament.

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India has the oldest judiciary in the world. No other judicial system has a more ancient or exalted pedigree Justice S.S. Dhavan
Legal System in Ancient India:
India's legal history is the oldest in the world which can be traced back to the Neolithic age, consisting of the
civil and criminal adjudication process, which followed till the Indus Valley Civilization, but the main evidence
of India's historical legal system and heritage can be traced from the Vedic period, where the main idea of
justice and law is given by the idea of Dharma as illustrated by various Hindu texts like Puranas and Smritis.
According to Brihaspati Smiriti, there was a hierarchy of courts in Ancient India starting from the family courts
and ending with the King. The lowest was the family arbitrator. The next higher court was that of the judge;
the next of the Chief Justice who was called Praadivivaka, or adhyaksha; and at the top was the Kings court 4.
of India. Therefore the present structure has some resemblance in the order of hierarchy to the ancient one.

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Legal System In Medieval India:
During the Medieval period in India, the Mitakshara school of law was the most prevalent law compiled by a
Chalukya ruler in the 11th century, which was a very definite interpretation of the law. Today this law has
become the basis of Hindu Joint Family laws9. Then Islam came into India during the 11th century when
Mohammed Ghori defeated Prithviraj Chauhan at the Second Battle of Tarain in 1192 AD, with which
QutubuddinAibak became the first Sultan of Delhi, belonging to the Slave Dynasty.
During the Mughal period courts were divided into two categories:
Courts Of Religious or Personal Laws.
Courts of secular, common law, and political offenses.
But the hierarchy at the administrative level or the defined jurisdiction of courts was missing
in the Mughal era. The judicial decisions were very subjective and vary from judges to judges
which results in inconsistency in judgments.

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Legal System During the Colonial Period in India:
The common law system , a system of law based on recorded judicial precedents- came to
India with the British East India Company13. The Mughal judicial system was not very
organized and efficient due to which, the English Governor of Surat, where the first English
factory was set up after the permission was given by Emperor Jehangir, decided to have
their own legal procedures and rules to govern the workers who worked at the factory.
The East India Company was granted a charter by King George-1 to establish the mayors
court in Madras, Bombay, and Calcutta (now Chennai, Mumbai, and Kolkata respectively14.
These courts had the authorities to decide cases related to both civil and criminal matters,
but they derived their source of power from the Company15.

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Legal System in India After Independence:
After Independence, India's leaders had the huge task of formulating a constitution to govern a country with a
population of more than 350 million which has so much diversity in it. The task fell on a constituent assembly, which
consists of representation from all sections of society, with Dr. B.R. Ambedkar as the chief of the drafting committee
of the constitution and Dr.Rajendra Prasad as President of the constituent assembly. Thus after nearly three years,
The Constitution of India came into force on 26th January 1950 and India became a Republic.
The Constitution of India is the guiding force for making legislations and Acts throughout India and any law which is
in contravention of the provisions of the constitution will be deemed unconstitutional. While India has formed its
own constitution by itself, if still follows many of the archaic laws and even full codes from the British era for
different offenses like the Indian Contract Act,1872, Indian Penal Code 1860, and laws like Sedition (section 124A of
the IPC) which was before Independence to suppress voices of freedom fighters, but now used by different
governments to silent the dissenters, activists, and opposition leaders.

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Hierarchy of Courts:
The Judicial System in India follows a common law system in which the sources of law are statutes enacted by Parliament
or State legislatures, Customary law, and judicial decisions of Supreme Court and High courts, which have very significant
value while giving judgments 18.
The Judicial structure is mainly divided into a three-tier structure with:
Supreme Court at the top of the judicial system
Along with 25 High courts across the country, which have jurisdictions over more than one state
District and sessions courts and various tribunals for different types of disputes.

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Issues In Indian Legal System:
The Indian legal system is particularly refined, bearing testimony to the ingenuity of human
thought.
Judiciary is one of the pillars of the Indian democracy which had stood against the injustices
done by governments and individuals to secure the rights of the aggrieved parties. But in recent
times it is being seen that many issues and problems are plaguing the delivery of justice to the
common people. The issues which are affecting the Indian judiciary are
1.Pending cases:
It has become a huge problem for both the judiciary and the common people for the last
seventy years with over 3.5 crores cases pending across the country's various courts.
2.Infrastructural Issues:
Court infrastructure is often neglected while deliberating on the issues of access to timely
justice, but it is a very important aspect as it impacts the efficiency of both the judges and
lawyers who work in these courts for six to seven hours in an uninhabitable environment.
The absence of hygiene is also a big cause of concern, as it can lead to the spreading of
diseases

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3.Vacancy:
It is one of the issues which need to be resolved at the earliest both Subordinate courts and High
courts level, as 38% of the sanctioned seats for judges at the High courts20 across the country are
lying vacant, with is affecting the delivery of justice to the common people.
4.Transparency and Unaccountability:
Transparency in the working and appointments of judges to the top courts of
the country has been a controversial topic since Independence.

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Reforms Needed For Indian Legal System:
Various Law Commission reports and Independent research works from civil society
organizations have come out for improvement of our judicial system, but still, the
reality remains far from implementation of these reports.
* Filling up the Judicial Vacancies:
From the above findings, judicial appointments should be filled on an urgent basis as the backlog
of cases is overburdening the system, which is already very inefficient and slow. From Report
No. 245 of the law commission of India it can be seen that Higher Judicial services are
disposing less number of cases and also they have the highest vacant seats as compared to
Subordinate Judicial Services. Thus more judges are required to clear the pending cases.
* Creation Of All India Judicial Services:
Creating an Indian Judicial Services on the grounds of IAS, IPS, and IFS would certainly help in reducing
more than 5000 vacancies across the states in district and subordinates courts.

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* Decriminalization of Petty offenses:
* Solving Infrastructural Issues:
Creating modern and accessible infrastructure for existing courts across sessions
and high courts should be done on a priority basis, as a comfortable environment
for judges and lawyers will increase their overall efficiency
* Promoting Alternative Dispute Resolutions(ADR):
Promoting ADR culture like mediations and negotiations among individuals and
families and streamlining its process can be a viable option to reduce the burden
of the judiciary.

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Conclusion
Though India has one of the oldest legal backgrounds, its judicial system is still not keeping pace with
modern democratic legal systems and is lagging in the number of judges-people ratios, modern
infrastructure, pendency in heinous offenses like sexual assault, and lack of access to justice to most
vulnerable sections of society.
While India has gained Independence from Britain seventy years back, the colonial mindset which has been
embedded in our thinking and life has still not gone and our legal system is still plaguing that culture
because of which many severe issues have arisen in recent times like delay injustice because of the heavy
procedural based system and non-decriminalization of obsolete laws like obscenity law, homosexuality law
(Section 377 of IPC).
This colonial culture has also lead to corruption and non-transparency in the judicial
system, as judges are given very high status in Indian society and are kept out of the
purview of any kind of supervision

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Therefore from the above study, it can be concluded that the future of the Indian Legal System
is bright and progressive, and in this 21st-century young first-generation lawyers entering the
profession, graduating from the top law schools. The above changes can be brought into the
system drastically if there is a will to change, as we have seen during the Covid19 how quick
changes were made into the system so that the process of justice does not get disrupted.