The judicial system in India, historically viewed, has been said not to be based on sound principles as (a) even if efforts were made to establish a well ordered system of courts, there was hardly any attempt to create a body of law until as late as 1833 when legislatures were recognised as makers of law; (b) law outside the presidency towns were hardly territorial - ‘each identifiable racial or religious group had a separate body of law for itself’ (c) the ‘good conscience of the judge and the sense of justice’ was the deciding factor in a case. No wonder that there were elements of arbitrariness and chances of bribery and corruption. The English editor of the first English newspaper in Calcutta was punished for writing against the English judges.

What is however most important is that language of law and that of the law courts remained English. In a multilingual country with a miniscule English speaking population, the courts dispensed justice where the alleged criminal did not know his crime, the arguments for and against him, and had no opportunity of defending himself. Even when Indian judges were associated with the system, the realities did not change much. The post-Independence period saw a continuity of the same system, the Supreme Court replacing the Privy Council. Even today most laws are originally drafted in English and not even all-important laws are available in translation in all Indian languages. Only in the lower courts limited or optional use of regional languages is permitted. The Supreme Court requires everything to be done in English. In the High Courts legal pronouncements can be made in Sanskrit but judgements can only be written in English and in regional languages, if permitted. A few judges in scattered High Courts have written judgements in regional languages. The practice in Lower Courts in writing judgements is still mixed, English and regional language being freely used. This has a parallel in the Moghul practice of judgements written in Urdu and petitions in regional language in the early part of the British rule. The validity of the above view depends on the negation of the body of law existing in ancient India. There are a number of reasons why modern scholars do not accept ancient Indian law as law in the modern sense of the term.

The basic assumption in Hindu law is that it is eternal. It is derived from the Vedas. The Smrtis are interpreted texts of the Vedas. As justice Krishna Iyer says, “the integration of yoga of law and religion is the genius of Indian culture, which blends in dharma, the final components of legality and spiritual values”. He further goes on to add “you may examine, with scholarly objectivity, Indian Hinduism, Buddhism, Jainism, Sikhism, Christianity, Zorastrianism and other spiritually charged paths and pursuits as well as the family laws of various communities, and the finding will conform the Indianness of law and religion, regardless of denominations and majority and minority status”. The character of the legal system in India prior to foreign invasion is a conglomerate of codes which does not exclusively concern law but also “deals with all other religious duties and obligations as well ... the purely legal part of it is also deemed to be part of a dharma” (Sen Gupta, 1950). Dharma in ancient India meant duty, character, an the binding force which provided dynamic stability to the society and therefore was considered as embodiment as well as protector of law Conforming to legal rules, in those ages, carried with it the religious notions of ‘right’ and ‘wrong’. In the present age, law is divorced and demarcated from religious teaching; however, law and religious teachings in those days was intimately connected with each other. “Administrators of law in those ages had little difficulty in distinguishing between injunctions relating to matters enforced by courts and purely moral injunctions. They already had rules of interpretation originating in connection with Vedic texts and rituals, gradually developed into the various Mi???sa rules (Ibid.). A striking character of law in ancient India was that “law was furnished by the seers or wise men of the community who know the rituals of penance (prayaschitta) by which the wrongs could by righted. These wise men were resorted to for remedy when a transgression was committed and in all cases they were the persons who could lay down what was law”. In other words transgression of rules (anr?ita) is a violation not of laws enforced by human sanction but had supernatural forces punish transgressors in this life and also after death.

Hindu law, however, never went uncriticised. Nelson in his prospectus on a scientific study of Hindu law is of the view that the smr?tis were never practical laws but more or less of an ideal code somewhat like Bentham’s Theory of legislation, spun out of the imagination of priestly scholars never really administered before the British rule. In actuality, however, the smr?tis were scrupulously followed by kings and people in their transactions. To quote Sen Gupta (1950) “To western lawyers and scholars of the 19th century, familiar with only clear-cut rules and principles of law this unfamiliar mixing up of moral and legal rules was confusing and inconsistent with the character of the books as practical laws. But this is a character arising out of the fact of all the laws being deemed to be grounded in dharma or moral and religious duty which is a characteristic law throughout ancient Indian history”. It is contended by many modern scholars that the legal system in India is a contribution of the British as there was no body of laws of system of administration of justice prior to the British advent. It may however be seen that during the Smr?ti period all prevalent customary laws were codified and there was very specific instruction about the growth of legal system in Indian Society, Indra Deva and Shrirama say, “The Smr?tis countered Buddhism by codifying the norms of the revivalist movement, but they gave the recognition to the laws necessary for functioning of well-developed trade and industry. Though they combated Buddhism they did not discard the law pertaining to commerce, which was developed during the Buddhist period, in fact they laid down that disputes concerning traders and craftsmen should be settled in accordance with the law of their own guilds. Intricate conventions and customary rules of various trading casts and guilds were incorporated into an integrated juristic system. This process of integration, systematization, and sophistication of juristic principles and procedures reached its zenith in the later Smr?tis” (Ibid.).

Although, the Ramayana and Mahabharata are legendary and mythical epics, and cannot be considered perfect historical documents, they did influence the legal procedures. The contribution of Kauiliya Arthasastra, considered as the greatest Indian treatise on diplomacy and administration, is considerable in the administration of justice in ancient India. The smr?tis legitimized the var?n?a system (caste) and prescribed detailed inviolable norms of conduct.

Manusmr?iti is considered the first regular documents on law. It laid down principles dealing with varna and caste, family, marriage, status of women, kingship, administration, law and legal procedures. ‘Br?haspati, Narada, and Katyayana embody the most sophisticated stage of the development of traditional Indian jurisprudence and judicial procedure” (Ibid.). In all this, there is no mention of the role of language in jurisprudence and judicial procedures. It is possible to infer that since the king was the guardian of law and the court of justice consisted of learned Brahman?as, the language of law would have been Sanskrit. It is also possible to infer that communication from the lowest person to that of the highest would have been intelligible and that the common man who in his language had elements of Sanskrit would have understood circumstantial evidence that proved his failure to adhere to the codes of conduct. Patanjali speaks of Pundits, who at the time of sacrifice spoke impeccable Sanskrit, but outside used forms like ‘jar’, ‘tar’ and used ‘n?’ in place of ‘n’. Buddhist scholars used a form of Sanskrit, which is known as the Buddhist hybrid Sanskrit. Obviously as Prakrit languages were evolving, Sanskrit was being transformed which provided some continuity in communication. The relationship of modern European languages with classical Latin and Vulgar Latin parallels the development of modern Indian languages in relation to Sanskrit and Prakrit.

It would be interesting to study the legal system and the administration of justice in those times. Chronological history of the legal system has not been maintained because of a variety legal system has not been maintained because of a variety of reasons. The Vedic legal system in the form of Dharmasutras and Smr?tis could not be revived soon after the intervention of Buddhists.

Ancient Indian legal history is divided into:
i) Pre-Buddha period
ii) The Smr?ti period

During the Buddhist period, the old norms were uprooted. The Var?na hierarchy was attacked by the theory of equality. The privileges of the Brahman?as were delimited, the hierarchy of caste, the subordinate position of the woman, the low position of the Sudra were weakened.

During the revival of the Smr?ti era old values were restructured, what the Buddhist undid, was reasserted, codified and revived in this era.

The early R?gvedic society was divided into two on the basis of race. The Aryans and the Dasas, the superior and the Servile.

The Vedic Aryan era brought about a two-fold system of law. One for the Aryans and one for the conquered where skin colour, physical features, strange ways of worship aroused their wrath. The code of law in ancient India was discriminatory in so far as caste and sex was concerned.

“The Dharmasutras seem to contain material of widely different eras. While some portions, because of these archaic Vedic languages appear to be in the direct line of the Vedas, others strike as post-Buddhist and products of the age of Brahmanical revival. The latter are very close in their spirit and content to the Smr?tis. It is remarkable that the Dharmasutras do not claim a divine origin. They are avowedly composed by human beings. This is in sharp contrast to the Smr?tis. “The Dharmasutras are primarily the law books of the Aryans. But this law is closely connected with the social structure of ethical norms. Any deviation from the path of traditional social norms is considered an infringement of law” (Ibid.).

Baudhayana Dharmasutra declare that “whatever learned Brahman?as propounded even in jest in the highest law.” “Even the king should give due respect to the Brahman?as”. Law seems to be based on varna. “The Dharmasutras prescribe a specific code of conduct for Sudras” (Ibid.). The Sudras should serve the upper castes. “The Sudras were declared a servile class for whom law books prescribed no justice. They could not own any property. Generation after generation, serving the twice-born was their job”. In the VasiÀtha Dharmasutra, provision is made to take back the sons of persons who have been excommunicated from society. The person who murders a Brahman?a woman is known as ‘Abhisapta’ and the punishment for such a crime is excommunication. The reason for taking back the sons of the murderer is that the guilt of the father need not be carried over by the sons. Excommunication therefore is more harsh than being jailed for a term. “The Dharmasutras closely follow the ancient Vedic norms. The old practices were regularised and given the shape of formal legal codes. Through these provisions, it can be concluded that these cater to a civilisation with the supremacy of Brahman?as. In these, not only the codes of conduct for each varn?a have been laid down but also responsibilities of the king, taxation, sources of ownership, treasuretrove, inheritance, guardianship of minor’s wealth, punishment for libels, abuse, assault, adultery, etc., rules of money-lending and usury and adverse possession are prescribed.

Evidence from the Natyasastra

It would however appear from the Natyasastra which is not later than the 4th century A.C., that linguistic and social stratification had progressed considerably so that from the language use one could infer not only the region from which the person came but also his or her station in life. Natyasastra was so developed in Sanskrit that it was considered the fifth Veda. Words at that time were considered as the body of the dramatic art and therefore sufficient attention has to be given to verbal representation, prosody, metrical patterns, diction and use on the rules of language. It is said that “in case of the self-controlled heroes of the vehement, the light hearted, the exalted and the calm types, the recitation should be in Sanskrit. Heroes of all these classes are to use Prakrit when the occasion demands that. In case of even a superior person intoxicated with the kingship or wealth or overwhelmed with poverty, no Sanskrit should be used. To persons in disguise, Jain monks, ascetics, religious mendicants and jugglers should be assigned the Prakrit recitation. Similarly Prakrit should be assigned to children, persons possessed with spirits of lower order, women in feminine character, persons of low birth, lunatics and phallus worshippers” (Ibid.). The Natyasastra lists a number of exceptions to the role for Prakrit recitation. What is however of importance is that it lists seven major dialects and several sub-dialects and gives specific rules for the uses for major and minor dialects. It also gives distinguishing features of various local dialects and lists modes of address and intonation which signify the social order of those times. This not only gives a glimpse of the multilingual society, but indicates the mutual intelligibility among dialects and languages. There must have been a fairly wide spectrum of the society where Sanskrit was intelligible to the Prakrit speakers as much as Prakrit was intelligible to the Sanskrit speakers.

Another interesting aspect about Indian law is the element of law that is transmitted through tales like Panchatantra. “Panchatantra, though it is a collection of fables, depicts quite faithfully the daily life in India and daily juridical problems” (Sternbach, 1967). Law is the thread that runs through the whole drama. Mrcchakaika, for example, contains a contract of deposit. Carudatta and Vasantasena conclude the drama with a contract of deposit. In the tale of ‘the honest mind and the evil mind’, three juridicial problems are solved:

1) The fate of an object found,
2) The surety of litigation and
3) Reading of texts of law books in the court.
Ethical values and religious injunctions have always been transmitted through the word of the mouth. While Sastras were memorised across generations by those who were entitled to know it, they were interpreted to the large majority of people in their languages. At different times how good conduct, social duties and even principles and practices of State craft were explained through stories can be seen, in the two major epics of growth, the Ramayana and Mahabharata. The same tradition was continued in Prakrit through secular stories as would be seen in ‘ba••hakaha’.

The Modern Period

The Hindu, the Muslim and the British have distinct legal systems of their own. However “the present judicial system is what the British created, and hardly has any correlation, continuity or integral relationship with the pre-British Institutions” (Jain, 1972).

The early British judiciary was run by non-lawyer judges and was dominated by the Executive. It was confined to Presidency towns and the rest of the country was left to their customary laws. From this state of the legal Institutions to the setting up of the Supreme Court at Calcutta in 1774 is a long journey. During this period professionalisation of the judiciary and experiment with the judicial control of the Executive was attempted. The first succeeded to some extent in so far as professional lawyer-judges backed by an English bar formed the judiciary. The second however failed and the powers of judiciary curtailed in 1781 which settled the judiciary side by side with the Executive. The Adalat system started in Bengal since 1772, and introduced in the territories subsequently, mixed up judicial and executive functions at the beginning stages. In fact, the judiciary function was treated as secondary. But as the system was reformed, the all English Adalat system gave way to the appointment of more and more Indian judges, civil courts were separated from the Executive and thus were more responsive to the people.

High courts, precursors of modern law and justice in India set up in 1862, combined the two parallel streams of justice prevalent until then, the Supreme Council in the Metropolis and the Adalat elsewhere. The Supreme Court designed to cater to the British in India was a replica of British law and justice and the Adalats administering the indigenous laws of Hindus and Muslims was to meet the needs of the rural people. The emergence of the Privy Council as the ultimate court of appeal led to legal uniformity throughout India.

The Muslim law of crimes was the law in the land during the Moghul rule. Even after the British advent it continued for almost 100 years in Bengal, Bihar and Orissa, where it was well entrenched. As the English judges found its provisions militating against ‘natural justice, common senses and good government’, they effected changes so that it gradually transformed itself into Anglo-Muslim law of crimes.

The Muslim Criminal law arranged punishment into four broad categories: Kisa or retaliation; Diya or Diyut meaning blood money; Hadd - specific penalties and Tazeer - punishment left to the discretion of the Magistrate. The ‘Kisa’ in principle meant limb for limb. It can be traded for Diya if the injured foregoes his right to claim death for death. Hadd prescribed specific punishment such as death by scourging or stoning, amputation of limbs or flogging. Such severe punishment was prescribed as deterrent to criminal action. However, it was often difficult to establish certain charges such as adultery, as it had to be proved that the act was committed in the open and defied public decency. Although, being a public right, the ruler or his deputy were entitled to enforce punishment without the precondition of proof. Generally speaking, it is claimed that “as a system the Mohammadan law of crimes is mild, for though, some of the principles and sanction, be barbarous and cruel, yet not only is the infliction of them rarely rendered compulsory on the Magistrate, but the law seems to have been framed with more care to provide for the escape of the criminals than to found conviction on sufficient punishment for offenders” (Parliament Paper XII, 696, 1831, 32).

The Muslim law of crimes was also seen as full of contradictions. It did not distinguish between private and public law. The westerners found it funny as it was based on concepts of state and social relations which they discarded a long time back. The Muslim law considered drunkness and adultery as crime against God and murder and robbery as crime against men. Crimes of the former type demanded public vengeance whereas compensation for crimes of the latter type were left to individual initiative. It was claimed it did not take into consideration the fact that a crime is not only an offence against an injured individual but is also an offence against the society. The Tazeer made the law arbitrary so that sometimes it permitted too much lenience and sometimes too much severity. As the law was vague and the quantum of punishment could be determined by the whim of a single judge it left ample scope for corruption and bribery. It also provided for different punishment for the rich and the poor. The process of repealing and amending the Muslim criminal law started in 1790 and continued till 1860 when the Indian Penal Code was superseded.