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Indian Law


INDIAN LAW. The law in force in British India may con veniently be divided into six heads: (I) The law expressly made for India by the British parliament, or by the sovereign. (2) Eng lish law in force in India though not expressly made for India. (3) The law made by persons or bodies having legislative au thority in India. (4) Hindu law. (5) Burmese Buddhist law. (6) Mohammedan 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 three are personal, i.e., they apply only to persons who answer a given description.

Law Expressly Made for India by the British Parlia ment or Sovereign.—There are in existence many Acts of parliament relating to India. Many Acts were concerned with constitutional law, the powers of the East India Company, of the Board of Control, and of the governor-general, and, after 1858, with those of the Crown, the secretary of State and his council, the governor-general in council, and the other Governments of presi dencies or provinces. These have now been consolidated in the Government of India Act 1915 as largely amended in 1919. This Act deals also with the high courts. Such courts have been estab lished by charter at Calcutta, Madras, Bombay, Allahabad, Patna, Lahore and Rangoon, and some of the clauses of their charters are legislative in effect.

English Law in Force in India Though Not Made Ex pressly for India.—Before the wars with France in the middle of the , 8th century the East India Company's possessions had been little more than trading posts, and the mayors' courts estab lished by charter at the larger ones, such as Calcutta, were not generally concerned with anything but matters inside the settle ments, and endeavoured to adjust these on the basis of English Law where British subjects were concerned. But, as shown in the historical section of INDIA (q.v.), by 176o the company had become responsible for more or less of the administration of considerable territories in Bengal and southern India. Under Acts of parliament commencing with the Regulating Act of supreme courts were established, originally at Calcutta, and then, superseding recorders' courts, at Madras and Bombay. And it was held that they were to administer English law within those presidency towns, unless by their charters directed to administer some other law. The charters did direct them to apply to Hindus and Mohammedans their own laws in regard both to all matters of inheritance, succession and family law, and to matters relating to religion and caste. It was soon found that the law of succes sion and inheritance could not be administered without also administering that of marriage. Outside the presidency towns, when the company did finally take up the administration of jus tice, it did not at first purport to alter the law. It administered Hindu law to Hindus and Mohammedan law to Mohammedans, and retained, at least in Bengal and Madras, Mohammedan crim inal law as the criminal law. Gaps in the law, and adaptations to new needs, had to be filled in by recourse to the principles of "justice, equity and good conscience" which Sir Henry Maine (Village Communities, 1881, p. 299) surmises to have of ten been, in the case of the subordinate courts, "applying some half-re membered legal rule learned in boyhood." And thus a good deal of English equity, and some English common law, came into the practice of the company's courts. And when the supreme courts at last recognized Hindu wills, they had to apply the methods of the English court of probate.

Legislative Law.—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, and until 19o9 British influences were predominant in the legislative councils. The present legislative authorities in India are: (I) the central legislature, i.e., the council of state and the legis lative assembly, (2) the legislative council of each "governor's province," and (3) (only in emergency) the governor-general. Their Acts deal with topics of every sort suitable for legislation. No legislative enactments of any kind passed in India before are now in force. In Bengal in the year 48 regulations, as they were then called, were passed in a single day, and it was assumed that all previous legislation in Bengal was thereby super seded. 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 not thought to be convenient, and for these terri tories the governor-general in council issued general orders, not in the regular way of legislation, but in the exercise of his execu tive 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 "regulation" was dropped after the passing of the 3 and 4 Will. IV. c. 85 (1833), and since that time the word "Acts" has been in use. Acts are referred to by their serial numbers in the year of the sovereign's reign in which they were enacted.

At times since 1833 commissions have been appointed to draft laws prior to their introduction into the governor-general's legis lative council, but this practice ceased before 187o. To the earliest of these commissions we owe the Indian penal code, much of the original draft of which was made by Macaulay. It was finally passed in 186o and came into force in 1862. It leaves procedure to be dealt with in a separate code. It is based upon English criminal law, but in many points simplifies it and renders it easier to administer, while somewhat altering it in others. What is commonly called larceny in England and the United States is broken up into theft, criminal misappropriation and criminal breach of trust, for instance; and all offences are defined in lan guage which is capable of plain interpretation. The best testimonial to the penal code is that, though it has needed some additions, it has stood without substantial alteration for about 65 years. Other parts of the law which have been codified are criminal pro cedure, civil procedure, contracts, wills of Hindus in the presi dency towns and the old province of Bengal, wills and intestacy of Christians and of Parsees, probate and administration of all wills and of intestate estates, specific relief, registration of title, transfer of property, trusts and evidence. Sir J. F. Stephen was the draftsman of the Indian Evidence Act, which was passed in 1872.

The law relating to land revenue has been the subject of in numerq.ble regulations and Acts of the Indian legislatures. A description of the revenue systems prevailing in India will be found in the article INDIA. The law which governs the relation of cultivators to those, whom 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 rela tion 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 later legislation. Tenancy rights vary from province to province, and each province has its tenancy law, or perhaps two or more such laws applicable in different parts of the province. The scope of this article does not admit of an examination of them. The tendency is to encourage hereditary occupancy tenure at rents to be fixed periodically by the courts, or at least life-tenure. In Madras and Bombay much land is owned by the actual cultivators. And in northern India most small landholders cultivate some of their lands while tenants hold the rest of it.

The legislative acts of the governor-general in council from

to date have been published by the legislative department of the Gov ernment of India. They are revised from time to time, and an annual volume published of each year's acts. The Madras code, the Bombay code, the Bengal code, the United Provinces code, the Punjab code, the Burma code, the Central Provinces code, the Bihar and Orissa code, the Assam code, and the codes of the small provinces have been pub lished by the legislative department and revised editions are published from time to time. See also Baden Powell, Land Systems of British India (1892).

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