NATIONAL LAW UNIVERSITY ODISHA

Legal History
(Course Outline)

SEMESTER I
B.A. LL.B. & B.B.A. LL.B. (Hons.)

COURSE TEACHER
Mr. Abhay Kumar
&
Mr. Kapil Sharma
Description

The current legal system in India is the common law system established by the British East
India Company replacing the indigenous legal system. When the British Crown took over the
administration from the EIC in 1858, the Mayor’s Courts of the EIC were replaced by the
Supreme Court and the High Courts. Thus, this course traces the development of normative
orders emerging in the 19th and early 20th centuries in India. To discuss the evolution and
transformation of the legal system, firstly, the legal system of India in ancient times is
examined. This includes a brief examination of ancient scriptures on law like Manusmriti,
Dharmasastra, Arthasastra and Quran. Secondly, the course explores the transformation of the
legal system with the advent of British rule in India. Various legislations of British India are
studied to understand the role they played in in the governance of the Indian society of that
time. Finally, the evolution of the legal system of Independent India is examined thoroughly.
Some of the British era legislations are still in force, like Indian Penal Code, 1860, Indian
Evidence Act, 1872, Indian Contract Act, 1872 etc. and thus the students are required to assess
the relevance of these legislations in contemporary times. It is pertinent for law students to
have a conceptual understanding of Indian legal history to truly understand the Indian legal
system as it exists today.

Course Objectives

CREATE: To create awareness about the significance of various documents drafted either as
legislations to govern British India or as aspirational political documents in the framing of the
Constitution of India.

EVALUATE & REMEMBER: To make students able to interpret the role of religious texts
in the development of law, legal institutions and legal system of India.

APPLY: To develop the relevance and understanding of the ancient, medieval and colonial
legal system and their application in modern India.

UNDERSTAND: To familiarize the students about the pre-colonial and post-colonial

developments in India and the contributions of Britishers to our current legal system.

ANALYSE: To make student think about the social problems that persisted in the Ancient,
medieval and colonial India and whether after independence had these problems been resolved
or not.
Learning Outcomes:

After the successful completion of this course, the students will be able to:

• analyze the rationale behind the British India legislations and their relevance in the
contemporary times.
• compare and contrast the role of law, legal institutions and legal system in ancient India,
British India and in modern times.
• evaluate the preparatory history of certain present-day legislations and must also be
able to evaluate the effectiveness of certain legislations in the context of changed
circumstances.
• develop an understanding about the role of law to deal with the social problems existing
in the Ancient, medieval and colonial times.

Course Structure

MODULE 1: INTRODUCTION TO ANCIENT AND MEDIEVAL LEGAL SYSTEM

Indian administration of justice is considered as the oldest judicial tradition in the world. No
other judicial system has a more ancient or exalted pedigree. This module provides a brief
overview of the administration of justice in ancient and medieval India. This module traces
how the laws were applied in those eras and how they have evolved with the changing times.
Specifically, this module focuses on the transformation of laws from the ancient era to the
medieval era therefore the role of law and its application along with its transformation from
ancient to medieval India is also discussed under this module. Further, this module will explore
Britisher's understanding of Indian laws, particularly, the writings of British authors and their
approach to Indian laws, for instance, Henry Mayne described the Indian legal system as an
apparatus of cruel absurdities. Students are required to debate on the need of Britishers to
replace the Indian legal system with theirs.

This module, thus, includes a discussion on the following:

Ancient Legal System

 Relevance of Hindu religious texts in the Administration of Justice

 Types of Courts

 Interpretation of the text of the law

  Administration of Justice

Administration of Justice during Medieval India

 Relevance of Muslim religious texts in the Administration of Justice

 Types of Courts

 Interpretation of the Muslim religious texts of the law

 Administration of Justice

IMPORTANT CASE: Rukhmabai Case

Suggested Readings:

1. The Indian Judicial System: A Historical Survey by Mr. Justice S. S. Dhavan (Refer
the Reading Material)

2. Judiciary in Ancient India by Veya Surya M.S. (Refer the Reading Material)

3. V.D. Kulshreshtha’s Landmarks in Indian Legal and Constitutional History, Twelfth

Edition, 2019, pp 4 -34.

MODULE 2: ADVENT OF BRITISH COLONIALISM IN INDIA

After learning about the laws in ancient India and medieval India, the students are introduced
to the beginning of British India’s legal system. This module traces the beginning history of
the British era to develop better understanding about their impact on the contemporary legal
system.

This module includes a discussion on the following:

 Initial Charter of East India Company

 Acquiring territories and establishing settlements; Madras, Bombay and Calcutta

 Setting up of precedencies

 Effect of colonialism over India

Suggested Readings:

1. V.D. Kulshreshtha’s Landmarks in Indian Legal and Constitutional History, Twelfth

Edition, 2019, pp 68-96.
 2. M.P. Singh, Outlines of Indian Legal and Constitutional History, Eighth Edition 2006,
Reprint 2021, pp 1-14

MODULE 3: DEVELOPMENTS OF JUDICIAL, LEGISLATIVE AND

ADMINISTRATIVE INSTITUTIONS AND THEIR POWERS

After a discussion on the advent of British rule in India, the students are introduced to the
various legislations that was responsible for the governance of British India. This module thus
explores the gradual emergence of various legislations that conferred powers on the Governor-
General and the Councils. This module also traces the administrative and legislative powers of
the Company as well. Apart from these legislations, this module throws some light on other
important legislations passed by the British Parliament during that time. With that, the students
are also introduced to the development of judicial structure in India during that time. This
includes the role of Crown’s Court, Mayor’s Court, Courts of Governor-General and its
Councils, SC, Privy Council and Federal Courts. This module also includes a discussion on
Warren Hastings’ impeachment as well.

Thus, this module includes a discussion on the following:

 The Charter Acts of 1726, 1753, 1813,1833 & 1853

 Warren Hastings Judicial Plan of 1772 & 1774

 The Regulating Act,1773

 The Act of Settlement, 1781

 Lord Cornwallis Judicial Reforms of 1787, 1790 & 1793

 Indian High Court Act, 1861

IMPORTANT CASES: Trial of Raja Nand Kumar (1775): Judicial Murder Case; Kamaludin
Case (1775); The Patna Case (1777-1779); The Cossijurah Case (1779-1780); Radha Charan
Mitra case; Andrews Hunter v. Rajah of Burdhwan;
Suggested Readings:

1. M.P. Singh, Outlines of Indian Legal and Constitutional History, Eighth Edition 2006,
Reprint 2021, pp 15-63
2. V.D. Kulshreshtha’s Landmarks in Indian Legal and Constitutional History, Twelfth
Edition, 2019, pp 352-369.
MODULE 4: CONSOLIDATION AND CODIFICATION OF LAWS

This module explores the further contribution of the Britishers and in particular, examines the
enactments, consolidation and codification of laws which is generally attributed as one of their
significant contributions. This module also explores the role of various law commissions in
strengthening the Indian legal system.

This module includes a discussion on the following:

 Role of Law Commission in development of law and legal institutions

 Effort of British legislators: James Fitzjames Stephen, Thomas Babington Macaulay

 Law Commission reports

 Codification of laws: Indian Penal Code 1860, Indian Evidence Act 1872, Transfer of
Property Act 1888, Criminal Procedure Code 1898, Civil Procedure Code 1908,
Negotiable Instruments Act, 1881 etc.

Suggested Readings:

1. Establishment of the Indian High Courts, Available at:

http://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-
b9de496f8751/Custom/UNIT-%205.pdf (Refer the Reading Material)

2. Privy Council and Federal Court: An Overview by Jatin Patil and Yuvraj Sharma
(Refer the Reading Material)
3. Law commission and codification of laws, Available at:
https://law.uok.edu.in/Files/5ce6c765-c013-446c-b6ac-
b9de496f8751/Custom/UNIT%20-%204.pdf (Refer the Reading Material)
4. M.P. Singh, Outlines of Indian Legal and Constitutional History, Eighth Edition 2006,
Reprint 2021, pp 105-124.
5. V.D. Kulshreshtha’s Landmarks in Indian Legal and Constitutional History, Twelfth
Edition, 2019, pp 170-183.

MODULE 5: CONSTITUTIONAL HISTORY OF INDIA

In this course, the students are introduced to the Constitutional history of India as well and this
module provides an overview of antecedent documents drafted either as legislation governing
British India or as aspirational political documents. This module will trace the coming together
of complex ideas shaped by British and Indian political leaders’ efforts which culminated in
the making of the Indian Constitution.

This module includes a discussion on the following:

 Constitution of India Bill 1895 (Swaraj Bill)

 The Indian Councils Act 1909

 The Government of India Act 1919

 Nehru Report 1928

 Karachi Resolution 1931

 The Poona Pact 1932

 The Government of Indian Act 1935

 Sapru Committee Report 1945

 Cabinet Mission Plan 1946

 Federal Court (Enlargement of Jurisdiction) Act, 1947

IMPORTANT CASES: J.K. Gas Plant Mfg. Co. (Rampur) Ltd. V. King Emperor, Mohindar
Singh v. Emperor, Mata Prasad v. Nageshar Sahai, N.S. Krishnaswami v. Perumal Goundan

Suggested Readings:

1. Landmarks in the Constitutional History of India by Atul Chandra Patra (Refer the
Reading Material)

2. M.P. Singh, Outlines of Indian Legal and Constitutional History, Eighth Edition 2006,
Reprint 2021, pp 156-175.

MODULE 6: REPEAL OF BRITISH STATUTES

Finally, the course ends with the repeal of some British statutes with India achieving political
independence from the British.

This module includes a discussion on the following:

 Periodical revision and repeal of statute law

 Obsolete British statutes

 Need for repealing obsolete enactments

  Legislative power to repeal: The Government of India Act, 1935 and The Indian
Independence Act 1947
Suggested Readings: 1. Abolition of Privy Council Jurisdiction Act, 1949 2. The British
Statutes (Application to India) Repeal Act, 1960.

LECTURE PLAN
Modules Lecture Hours

MODULE 1: Introduction to Ancient and 12

Medieval Legal System
MODULE 2: Advent of British Colonialism 12
in India
Module 3: Developments of Judicial, 12
Legislative and Administrative Institutions
and their Powers
MODULE 4: Consolidation and Codification 8
of Laws
MODULE 5: Constitutional History of India 12

MODULE 6: Repeal of British Statutes 6

Total Lecture Hours 62

ESSENTIAL READINGS

• Jain, M.P., Outlines of Indian Legal History [Delhi, 1997]

• Singh, M.P., Outlines of Indian Legal and Constitutional History, [New Delhi,
2017]
• Kulshreshtha, V.D., Landmarks in India Legal and Constitutional History,
[Lucknow, 2005]
• Nair, Janaki. Women and Law in Colonial India: A Social History. New Delhi: Kali for
Women in collaboration with the National Law School of India University [1996]
• Jois, Justice M. Rama, Legal and Constitutional History of India: Ancient Legal,
Judicial and Constitutional System [Delhi, 2001]
 • Sreenivasa Murthy, H.V., History of India Part I For Law Students, National Law
School of India, Bar Council of India, [Eastern Book Company, Lucknow, 2008]
• Derret, Duncan M., Religion, Law and the State in India [New Delhi, 1999]
• Hamid, Abdul, A Chronicle of British Indian Legal History [RBSA Publishers, 1991]
• Mensky, Werner, Comparative Law in a Global Context: The Legal Systems of Asia
and Africa [Cambridge, 2006]
• Sharma, R.S., Aspects of Political Ideas and Institutions in Ancient India [
MotilalBanarsidass Publ., 1996]
• Chandra, Bipan, India's Struggle for Independence [Penguin Books Limited, 2000]

ADDITIONAL READINGS

• Guha, Ranajit, A Rule of Property for Bengal: An Essay on the Idea of Permanent
Settlement [Paris, 1963]
• Kane, P.V., History of Dharmasastra, Vols. 1-5 [Poona, 1968]
• Political History of Ancient India, [New Delhi: Oxford University Press, 2006; seventh
impression; first published in 1923]
• Rizvi, S.A.A., The Wonder that was India, Part II: A Survey of the History and Culture
of the Indian Sub-Continent from the Coming of the Muslims to the British Conquest,
1200-1700, [New Delhi, 1993]
• Saharay, H.K., Legal and Constitutional History of India [A Legal Study of the
Constitutional Development of India] [Calcutta, 1985]