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not by imposition. At the same rime that custom involving residents of the presidency towns or com-
was gradually aligned in some respects with the stan- pany factories. But uniformity proved elusive and
dards set by the dharmashastra, the textual law was jurisdiaional restrictions proved difficult to main-
itself continuously reinterpreted to accommodate a tain in the face of the appeal of these courts to Indian
variety of usages. The relation between the "high- litigants. [See East India Company.]
est" and most authoritative parts of the legal system A new plan, put forth in Bengal in 1772 and later
to the "lower" components was more like the re- adopted in Bombay and Madras, established in each
lation between leading American universities and presidency a hierarchy of courts empowered to hear
smaller colleges, or between haute couture and dis- civil cases between all residentsboth Indian and
count store fashions, than it was to the type of hi- Europeanof the presidency. In suits regarding in-
erarchical relationship that is associated with a mod- heritance, succession, marriage, caste, and religious
em legal system. No central power could pronounce endowments, the courts were to apply the dhar-
binding law or unify the system. mashastra to the Hindus and the shari'a to Muslims.
Islamic Inuence. This diverse, decentralized sys- The Brirish judges were assisted by brahman advi-
tem became even more complex with the conquest sors in ascertaining and applying Hindu law, and
of much of India by Muslim invaders, beginning in moulvis for Islamic law. Presidency-wide hierarchies
the twelfth century. Muslim rulers had royal courts of criminal courts were established in the 1790s.
in cities and administrative centers that exercised Thus, by the end of the eighteenth century British
general criminal (and sometimes commercial) juris- courts had completely supplanted those of the In-
diction and also decided civil and family matters dian rulers throughout the territory of the presiden-
among the Muslim population. These courts oper- cies. This process continued through the nineteenth
ated according to Muslim lawat least in theory, century, with new British courts being created as the
for the application of shari'a (Islamic law) was qual- territory of Brirish India increased.
ified by custom and royal decrees, by corruption and The law applied by the Brirish courts was derived
lack of professionalism, and by arrangements allow- from many sources. Hindu and Muslim law contin-
ing considerable discretion to the courts of first in- ued to be applied in the "personal law" areas of
stance. While a hierarchy of courts and a right of inheritance, caste, marriage, and religion. J-Iowever,
appeal existed, it seems that the activity of these the British were not content to depend solely upon
higher courts fell short of any sustained and system- Indian advisers for knowledge of Hindu and Muslim
atic supervision of the lower courts. Hindus were law; they also translated many basic works on the
generally allowed their own tribunals in civil mat- dharmashastra and shari'a. The Brirish judges relied
ters. Where such matters came before royal courts, increasingly on such texts, as well as on precedent
the Hindu law was applied. The government's courts from their own courts. Outside these areas, the Brit-
did not extend very deeply into the countryside; ish judges were empowered to decide according to
there was no attempt to control the administration "justice, equity, and good conscience," a rubric un-
of law in the villages. Presumably, the Hindu tri- der which most cases were decided according to
bunals proceeded as before Muslim rule, except that principles and rules of English law. [See also Jones,
whatever ties had bound these tribunals tp govern- Sir William.]
mental authority were weakened; there was no ap-
peal to the royal courts. [See also Durbar.] The anglicization of the law in India increased
after 1858, when the Brirish Crown replaced the
British Rule. A third legal tradition arrived with administrarion of the East India Company. During
the British in the seventeenth century. The East India the next quarter century a series of codes, based
Company's charter gave it the power to discipline more or less on English law and applicable through-
its own servants, and a 1618 treaty with the Mughal out British India, were enacted. There was virtually
emperor recognized this power for the company's complete codificarion of all fields of commercial,
factory at Surat. As new British settlements were criminal, and procedural law. Separate "personal
established, new company courts were created in laws" were srill applied to Hindus and Muslims, but
them. These courts were not the same in all loca- the connection between these laws and the original
tions, however. In 1726 the courts in the presidency traditions of the dharmashastra and the shari'a be-
towns were made royal courts of uniform structure, came transformed. After 1862 the courts no longer
deriving their power directiy from the king and not employed Indian law advisers but instead decided
from the company, with appeal to the Privy Council cases on the basis of precedent and the available
in London. Their jurisdiction was confined to cases texts. The traditional methods of refining the doc-
LAW: JUDICIAL AND LEGAL SYSTEMS OF INDIA 413
trines of the dharmashastra through the writing of filings, to the point of being moribund. It seems that
commentaries, and the flexible application by the these nyaya ("new") panchayats offer neither the
shastris were displaced by the British system of community justice of the old panchayats nor the
formal rule application and accumulation of prece- independence and finality of the courts, and thus
dent. The living process of Hindu law was abandoned; have not been attractive to potential litigants. [See
in its place appeared a body of rules known as also Panchayat.]
"Hindu law." The adoption of die constitution introduced sev-
As the law applied in British Indian courts became eral entirely new elements into the Indian legal sys-
increasingly anglicized, the traditional legal insti- tem. One was the basic idea of constitutionalism. In
tutions were also largely displaced. The British a striking departure from the British idea of parlia-
courts quickly attracted large numbers of cases. mentary supremacy, the Indian courts are empow-
Some indigenous judicial institutions, panicularly ered to strike down legislation and administrative
caste councils, remained active, but in the course of acts that violate provisions of the constitution. This
power of judicial review has not been completely
the late nineteenth and early twentieth centuries,
accepted by Indian politicians. There has been a
most of'these bodies became moribund. The British
dialeaical process of Supreme Court assertions of
viewed the flood of cases into their courts and the
the review power, legislative enactments and con-
concomitant decline of traditional judicial institu-
stitutional amendments to limit that power, and fur-
rions with some concern, as they thought that in-
ther Supreme Court decisions preserving the power
digenous forms of judicial administrarion would be despite the actions of Parliament.
cheaper, more suited to Indian cases, and less prone
than British courts to manipularion and abuse by The battles over the power of judicial review have
lirigants. Nevertheless, all efforts to divert Indian largely been fought over issues involving the Fun-
cases from the courts into other forums failed. damental Rights, which are guaranteed citizens by
A large and influenrial legal profession developed Part III of die constitution, roughly analogous to
as the business and importance of the courts in- the American Bill of Rights. The constitution pro-
creased. The first judges and lawyers were English, vides that citizens may request writs enforcing these
Fundamental Rights directly from the Supreme
but as the nineteenth century progressed the bar
Court or from the high court of dieir state, without
became predominatly Indian, and increasing num-
first bringing the matter before a lower court. This
bers of Indians were appointed to the judiciary.
ready access to die higher judiciary has ensured that
Lawyers became prominent in public life, and par-
Fundamental Rights issues are frequently raised, and
ticularly in the movement for Indian independence
has led to the development of an elaborate consti-
from Britain. tutional jurisprudence.
Postindependence. After independence in 1947,
the legal system changed again. The Constitution of In modern India, law is seen as a means for chang-
India, which came into effect in 1950, created a ing society. The Republic of India is a secular and
unified, hierarchical judiciary, headed by a Supreme (since 1976) socialist state. The constitution calls
Court. In effect, the constitution preserved most of for state action to bring about a more equal and just
the court system created by the Brirish, but made society. Parliament has enacted many laws aimed at
achieving that goal. Thus, Article 17 of the consti-
the Supreme Court rather dian the Privy Council
tution abolishes "untouchability," and laws have
the highest court of appeal. Each state (with a few
been enacted that impose penalties for restricting
exceptions, where two states share one court) has a
the civil rights of die former Untouchables. Other
single judicial hierarchy with a High Court at its
constitutional provisions empower the state to de-
apex. There are no lower central courts, although
part from formal equality to promote the interests
specialized tribunals do exist to handle cases in such of the former Untouchables, members of tribal
areas as income tax or labor matters. English is still groups, and other "backward" classes. Pursuant to
the language used in most courts. these provisions, govemment has erected programs
The caste and local tribunals have largely disap- of "compensatory discrimination" involving reser-
peared. Attempts to resurrect "traditional" justice, vation of such benefits as jobs and places in profes-
in the form of informal village courts (rryaya pan- sional schools for members of these groups. Other
chayats) to handle minor disputes, have not been laws have been enacted to bring about equal treat-
successful. When they were created in the 1950s, ment of women, the abolition of dowry, and the
these panchayats attracted large numbers of cases, emancipation of bonded laborers. The constitution
but most of them have undergone a drop in case
414 LAW: LAW IN SOUTHEAST ASIA