Chanakya National Law University: A Project of

CHANAKYA NATIONAL LAW UNIVERSITY
A PROJECT OF
LEGAL HISTORY
ON
“DEVELOPMENT OF LAW IN INDIA”
SUBMITTED TO: SUBMITTED BY:

Dr. Priya Darshini Shreya Sinha
(Faculty of Legal History) Roll No. - 1648
Semester – 2nd
B.BA LL.B
Session – 2016-2021
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DECLARATION BY THE CANDIDATE
I hereby declare that the work reported in the BB.A. LL.B (Hons.) Project Report entitled
“DEVELOPMENT OF LAW IN INDIA” submitted at Chanakya National Law University,
Patna is an authentic record of my work carried out under the supervision of Dr. Priya
Darshini. I have not submitted this work elsewhere for any other degree or diploma. I am
fully responsible for the contents of my Project Report.
(Signature of the Candidate)

SHREYA SINHA
Chanakya National Law University, Patna
21/04/2017
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ACKNOWLEDGEMENT
“IF YOU WANT TO WALK FAST GO ALONE

IF YOU WANT TO WALK FAR GO TOGETHER”
A project is a joint endeavor which is to be accomplished with utmost compassion, diligence

and with support of all. Gratitude is a noble response of one’s soul to kindness or help
generously rendered by another and its acknowledgement is the duty and joyance. I am
overwhelmed in all humbleness and gratefulness to acknowledge from the bottom of my
heart to all those who have helped me to put these ideas, well above the level of simplicity
and into something concrete effectively and moreover on time.
This project would not have been completed without combined effort of my revered Legal
History teacher Dr. PRIYA DARSHINI whose support and guidance was the driving force to
successfully complete this project. I express my heartfelt gratitude to her. Thanks are also due
to my parents, family, siblings, my dear friends and all those who helped me in this project in
any way. Last but not the least; I would like to express my sincere gratitude to our Legal
History teacher for providing us with such a golden opportunity to showcase our talents. Also
this project helped me in discovering the various facts related to the development of law in
India. This project also made me aware of the various laws which existed in Ancient India
and how the present day’s laws evolved from them. It was truly an endeavour which enabled
me to embark on a journey which redefined my intelligentsia, induced my mind to discover
the various events and provisions which led to the development of law in India.
Moreover, thanks to all those who helped me in any way be it words, presence?
Encouragement or blessings...
- Shreya Sinha
- 1st Semester
- B.BA LL.B
-
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TABLE OF CONTENTS
-
Acknowledgement …………………………………………………………………………….3
Table of Contents…………………………………………………………………………...... 4
Aims and Objectives………………………………………………………………………….5
Hypothesis……………………………………………………………………………………..5
Research Methodology………………………………………………………………………..5
Limitations…………………………………………………………………………………….5
1. Introduction………………………………………………………………………….6-9
2. Ancient Indian Law……………………………………………………………….10-14
3. Administration of Justice in British India………………………………………...15-23
4. Making of the Indian Constitution………………………………………………..24-27
5. Indian Judicial System Post-Independence……………………………………….28-34
6. Landmark cases bringing radical changes in the Indian Judicial System………...35-30
7. Conclusion……………………………………………………………………………41
Bibliography…………………………………………………………………………………42
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AIMS AND OBJECTIVES
The aims and objectives of this project are:

1. To study about the various sources which have contributed to the development of law
in India.
2. To study the historical background of law in India.
3. To study the evolution of law in India.
HYPOTHESIS
The Researcher strongly believes that:

1. Law in India has primarily evolved from customs and religious prescription to the
current constitutional and legal system we have today.
2. Law as a matter of religious prescriptions and philosophical discourse has an
illustrious history in India.
3. India maintains a common law legal system inherited from the colonial era and
various legislations first introduced by the British are still in effect in modified forms
today.
4. Indian personal law is fairly complex, with each religion adhering to its own specific
laws.
RESEARCH METHODOLOGY
The researcher has used the doctrinal method of research in the completion of this project on
“Development of Law in India”. The researcher intends to examine the secondary sources in
thus project. The secondary sources include books, websites, photographs, articles, e-articles
and reports in appropriate form, essential for this study.
LIMITATIONS
The presented research is confined to a time limit of one month and this research contains
only doctrinal works which are limited to library sources.
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INTRODUCTION
“In some respects the judicial system of ancient India was theoretically in advance of our
own today." - John W. Spellman
Law in India has evolved from religious prescription to the current constitutional and legal
system we have today, traversing through secular legal systems and the common law.
India has a recorded legal history starting from the Vedic ages and some sort of civil law
system may have been in place during the Bronze Age and the Indus Valley civilization. Law
as a matter of religious prescriptions and philosophical discourse has an illustrious history in
India. Emanating from the Vedas, the Upanishads and other religious texts, it was a fertile
field enriched by practitioners from different Hindu philosophical schools and later by Jains
and Buddhists.
Law of India refers to the system of law in modern India. India maintains a common law
legal system inherited from the colonial era and various legislations first introduced by the
British are still in effect in modified forms today. During the drafting of the Indian
Constitution, Indian laws also adhere to the United Nations guidelines on human rights law
and the environmental law. Certain international trade laws, such as those on intellectual
property, are also enforced in India.
Indian personal law is fairly complex, with each religion adhering to its own specific laws. In
most states, registering of marriages and divorces is not compulsory. Separate laws govern
Sikhs, Hindus, Muslims, Christians, and followers of other religions. The exception to this
rule is in the state of Goa, where a uniform civil code is in place, in which all religions have a
common law regarding marriages, divorces, and adoption.1
As of January 2017, there were about 1,248 laws. However, since there are Central laws as
well as State laws, it is difficult to ascertain their exact numbers as on a given date and the
best way to find the Central Laws in India is from the official website.
Secular law in India varied widely from region to region and from ruler to ruler. Court
systems for civil and criminal matters were essential features of many ruling dynasties of
ancient India. Excellent secular court systems existed under the Mauryas (321-185 BCE) and
the Mughals (16th – 19th centuries) with the latter giving way to the current common law
system.
1
http://www.barcouncilofindia.org/about/about-the-legal-profession/legal-education-in-the-united-kingdom/
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History comprises of the growth, evolution and development of the legal system in the
country and sets forth the historical process whereby a legal system has come to be what it is
over time. The legal system of a country at a given time is not the creation of one man or of
one day but is the cumulative fruit of the endeavour, experience, thoughtful planning and
patient labour of a large number of people through generations.2
With the coming of the British to India, the legal system of India changed from what it was in
the Mughal period where mainly the Islamic law was followed. The legal system currently in
India bears a very close resemblance to what the British left us with. As per the needs of the
changing times changes and amendments were made, but the procedure which is followed not
has its roots in the era of British-India. Little did the traders of the English East India
Company while establishing their trade in India know that they would end up establishing
their rule for about 200 years here. But the evolution of law as it is today did not come about
in one go altogether. It was the Presidency Towns individually that were first affected by this
change in hands of the governance of India after which the steps towards amalgamation of
the judicial system were taken by the Charters of 1726 and 1753. To improve upon this,
under the Regulating Act of 1773 Supreme Courts in the Presidency Towns and then under
the Act of 1798 the Recorder’s Courts at Madras and Bombay were established. These were
ultimately replaced by the establishment of the High Courts under the Act of 1861, which are
still running in the country. It was only after independence in 1950 that the Supreme Court
was established. Reforms and codifications were made in the pre and post-independence eras
and are still continuing.
Ancient India represented a distinct tradition of law, and had a historically independent
school of legal theory and practice. The Arthashastra, dating from 400 BC and the
Manusmriti, from 100 AD, were influential treatises in India, texts that were considered
authoritative legal guidance. Manu's central philosophy was tolerance and pluralism, and was
cited across Southeast Asia.3
Early in this period, which culminated in the creation of the Gupta Empire, relations with
ancient Greece and Rome were not infrequent. The appearances of similar fundamental
institutions of international law in various parts of the world show that they are inherent in
international society, irrespective of culture and tradition. Inter-State relations in the pre-
Islamic period resulted in clear-cut rules of warfare of a high humanitarian standard, in rules
2 th
MP Jain, Outlines of Indian Legal and Constitutional History (Lexis Nexis, 7 Edition, 2014)
3
http://www.indianscriptures.com/vedic-lifestyle/beginners-guide/ancient-indian-laws-and-practices
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of neutrality, of treaty law, of customary law embodied in religious charters, in exchange of
embassies of a temporary or semi-permanent character.
With the advent of the British Raj, there was a break in tradition, and Hindu and Islamic law
were abolished in favour of British common law. As a result, the present judicial system of
the country derives largely from the British system and has few, if any, connections to Indian
legal institutions of the pre-British era. The common law system – a system of law based on
recorded judicial precedents- came to India with the British East India Company. The
company was granted charter by King George I in 1726 to establish “Mayor’s Courts” in
Madras, Bombay and Calcutta (now Chennai, Mumbai and Kolkata respectively). Judicial
functions of the company expanded substantially after its victory in Battle of Plassey and by
1772 company’s courts expanded out from the three major cities. In the process, the company
slowly replaced the existing Mughal legal system in those parts.4
Following the First War of Independence in 1857, the control of company territories in India
passed to the British Crown. Being part of the empire saw the next big shift in the Indian
legal system. Supreme courts were established replacing the existing mayoral courts. These
courts were converted to the first High Courts through letters of patents authorized by the
Indian High Courts Act passed by the British parliament in 1862. Superintendence of lower
courts and enrolment of law practitioners were deputed to the respective high courts.
During the Raj, the Privy Council acted as the highest court of appeal. Cases before the
council were adjudicated by the law lords of the House of Lords. The state sued and was sued
in the name of the British sovereign in her capacity as Empress of India.
During the shift from Mughal legal system, the advocates under that regimen, “vakils”, too
followed suit, though they mostly continued their earlier role as client representatives. The
doors of the newly created Supreme Courts were barred to Indian practitioners as right of
audience was limited to members of English, Irish and Scottish professional bodies.
Subsequent rules and statutes culminating in the Legal Practitioners Act of 1846 which
opened up the profession regardless of nationality or religion.
Coding of law also began in earnest with the forming of the first Law Commission. Under the
stewardship of its chairman, Thomas Babington Macaulay, the Indian Penal Code was
drafted, enacted and brought into force by 1862. The Code of Criminal Procedure was also
4
http://cbseacademic.in/web_material/doc/Legal_Studies/XI_U3_Legal_Studies.pdf
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drafted by the same commission. Host of other statutes and codes like Evidence Act (1872)
and Contracts Act (1872).5
At the dawn of independence, the parliament of independent India was the forge where a
document that will guide the young nation was being crafted. It will fall on the keen legal
mind of B. R. Ambedkar to formulate a constitution for the newly independent nation. The
Indian Bar had a role in the Independence movement that can hardly be overstated – that the
tallest leaders of the movement across the political spectrum were lawyers is ample proof.
The new nation saw its first leader in Jawaharlal Nehru, and a paternal figure in M. K.
Gandhi, both exemplary lawyers. Perhaps it is the consequent understanding of law and its
relation to society that prompted the founding fathers to devote the energy required to form a
Constitution of unprecedented magnitude in both scope and length.6
The Constitution of India is the guiding light in all matters executive, legislative and judicial
in the country. It is extensive and aims to be sensitive. The Constitution turned the direction
of system originally introduced for perpetuation of colonial and imperial interests in India,
firmly in the direction of social welfare. The Constitution explicitly and through judicial
interpretation seeks to empower the weakest members of the society.
India has an organic law as consequence of common law system. Through judicial
pronouncements and legislative action, this has been fine-tuned for Indian conditions. The
Indian legal system’s move towards a social justice paradigm, though undertook
independently, can be seen to mirror the changes in other territories with common law
system.7
From an artifice of the colonial masters, the Indian legal system has evolved as an essential
ingredient of the world’s largest democracy and a crucial front in the battle to secure
constitutional rights for every citizen.
5
http://www.barcouncilofindia.org/about/about-the-legal-profession/legal-education-in-the-united-kingdom/
6 th
MP Jain, Outlines of Indian Legal and Constitutional History (Lexis Nexis, 7 Edition, 2014)
7
http://www.indianscriptures.com/vedic-lifestyle/beginners-guide/ancient-indian-laws-and-practices
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ANCIENT INDIAN LAW
The ancient Aryan rulers of India were confronted by political, economic, and social
problems in many ways similar to those with which modern British statesmen and social
reformers are struggling, and their solutions of them, according to all the evidence of history,
were much more satisfactory to the people at large than any which modern Europe has found.
The freedom and general happiness attained by the people of Great Britain with the help of
Parliamentary institutions and the richest revenues of the world can hardly be compared with
that which Indians within the Aryan pale enjoyed both before and after the fifth century
A.D.—the time which we regard as Dark Age. The Indo- Aryan constitution, built up by the
highest intelligence of the people upon the basis of the village communities, and not wrung
from unwilling war-lords and landlords by century-long struggles and civil war, secured to
the Indian peasant-proprietor not only the ownership of the land, but very considerable
powers of self-government. From 300 A.D to 1192 A.D India is said to worlds most
developed country, its GDP was equivalent to 25% of worlds GDP, followed by China which
had 15% share in World GDP.8 This tremendous development is impossible without very
sound justice dispensing system during that Golden age, to the contrary some Historians and
Foreign Jurists opined that there was no ‘rule of law’ in ancient India, if so what was the
system of Justice Administration that was in existence during that day and which ‘norms’
(Laws) of ancient Indian society contributed to attainment such highest stage of Human
Civilization. To answer these prepositions it is necessary to go beyond western distortions
about India and conduct impartial inquiry of surrounding social facts recorded in old texts.
India has the oldest judiciary in the world. No other judicial system has a more ancient or
exalted pedigree. But before describing the judicial system of ancient India I must utter a
warning. The reader must reject the colossal misrepresentation of Indian Jurisprudence and
the legal system of ancient India by certain British writers. Henry Maine described the legal
system of ancient India "as an apparatus of cruel absurdities". An Anglo-Indian jurist made
the following remark about what he called "the oriental habits of life" of the Indians before
the British turned up in India: "It (British rule in India) is a record of experiments made by
foreign rulers to govern alien races in a strange land, to adapt European institutions to
Oriental habits of life, and to make definite laws supreme amongst peoples who had always
associated government with arbitrary and uncontrolled authority." Alan Gledhill, a retired
member of the Indian Civil Service, wrote that when the British seized power in India, "there
8
http://www.legalservicesindia.com/article/article/the-legal-system-in-ancient-india-1391-1.html
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was a dearth of legal principles." For Bernard Cohn, the ancient constitution rendered Indian
history as antique, static and theocratic.9
These statements are untrue. It is not for me to guess why they were made. They may be due
to sheer ignorance, or imperialist self-interest, or contempt for Indian culture and civilization
which was a part of the imperialist outlook which dominated British Jurists, historians, and
thinkers in the heyday of imperialism. But the effect of this misrepresentation, which has few
parallels in history, was to create a false picture of the Indian judicial system both in India
and outside. These are the words of Hon’ble Justice S. S. Dhavan High Court, Allahabad; it is
true that Legal System in ancient India was much better and matured that, impartial English
Historians themselves admitted its superiority. Whereas others as mentioned above, in their
utter ignorance or with a view to defy Indian culture and thereby dominate Indian civilization
distorted, by creating false impression as to social conditions of pre-British India.
Judicial System in Ancient India
The concept of Dharma that ruled Indian civilization, from Vedic period up to Muslim
invasion from King to his last servant everyone was bound by Dharma, The word Dharma is
derived from "dhr" to mean to uphold, sustain or nourish. The Seers often use it in close
association with ‘rta’ and ‘satya’. Sri Vidyaranya defines ‘rta’ as the mental perception and
realization of God. The Taittiriya Upanishad also uses it with ‘satya’ and ‘dharma’. It exhorts
students to speak the truth and practice dharma (Satyam vadha: Dharmam chara). According
to Sankara Bhagavatpada ‘satya’ means speaking the truth and ‘dharma’ means translating it
(Satya) into action.10
In this regard, the explanation given by Sri.K.Balasubramania Aiyar is relevant: "An analysis
of the significance of these three words (rta, satya and dharma) brings out clearly to us the
fundamental basis of dharma as the ideal for an individual. While ‘rta’ denotes the mental
9
MP Singh, Outlines of Indian Legal and Constitutional History : Including Elements of Indian Legal System
th
(Universal Law Publishing, 8 Edition, 2007)
10
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perception and realization of truth and ‘satya’ denotes the exact true expression in words of
the truth as perceived by the mind, dharma is the observance, in the conduct of life, of truth.
In fact, dharma is the way of life which translates into action the truth perceived by the man
of insight as expressed by him truly. In short, ‘rta’ is truth in thought, ‘satya’ is truth in words
and ‘dhrama’ is truth in deed."11
Manusmriti written by the ancient sage Manu prescribes ten essential rules for the observance
of Dharma: Patience (dhriti), forgiveness (kshama), piety or self-control (dama), honesty
(asteya), sanctity (shauch), control of senses (indraiya-nigrah), reason (dhi), knowledge or
learning (vidya), truthfulness (satya) and absence of anger (krodha). Manu further writes,
"Nonviolence, truth, non-coveting, purity of body and mind, control of senses are the essence
of Dharma". Therefore dharmic laws govern not only the individual but all in society
Dharma is generally mean ‘principle of righteousness’ or ‘duty’, principle of holiness and

also the principle of unity. Yudhishthira says in his instructions to Bhishma that whatever
creates conflict is Adharma, and whatever puts an end to conflict and brings about unity and
harmony is Dharma. Anything that helps to unite all and develop pure divine love and
universal brother hoodness is Dharma. Dharma advocates if the Paramatman is to draw us
unto himself we must, without fail; perform our duties to him as well as to the world. It is
these duties that constitute what is called dharma. Again, it is dharma that serves us when we
dwell in our body and when we cease to dwell in it. It serves us in life and afterlife. There
need be no doubt or confusion about the dharma we ought to follow. We are all steeped in the
dharma that our, great men have pursued from generation to generation. They have inwardly
realized eternal beatitude and we know for certain that they lived without any care, unlike
people in our own generation who are always discontented and are embroiled in agitations
and demonstrations of all kinds. All we need to do is to follow the dharma that they practiced.
If we tried to create a new dharma for ourselves it might mean trouble and all the time we
would be torn by doubts as to whether it would bring us good or whether it would give rise to
evil. It is best for us to follow the dharma practiced by the great men of the past, the dharma
of our forefathers. It does not mean that ‘Dharma’ is immutable; ‘Dharma’ has to two aspects
one ‘Sanatana Dharma’ another is ‘Yuga Dharma’ later is valid one for an age. The Smiritis
themselves recognize this principle of social change, Manu says, “There is one set of dharma
for men in the kritayuga; a different set for each of tretayuga, dvapara and kaliyugas; the
11
MP Jain, Outlines of Indian Legal and Constitutional History (Lexis Nexis, 7th Edition, 2014)
12 | P a g e
dharma change according to the change of yuga. “The Hindu (i.e Sanatana Dharma) view
makes room for essential changes. There must be no violent break with social heredity, and
yet the new stresses, conflicts and confusions will have to be faced and overcome; while the
truths of spirit are permanent the rules change from age to age”. 12
Dharma is unique blend of rigidity and flexibility it protects eternal principles and accepts
continued valid traditions, Shurtis stands for universal, eternal, and fundamental principles
and Smiritis stands for a group of values derived from these principles and finding their
expression in limited, temporary and relative field of social life. Swami Vivekananda said,
“We know that, in our books, a clear distinction is made between two sets of truths. The one
set is that which abides forever, being built on the nature of man, the nature of soul, the
souls’s relation to God and so on. The other set comprises the minor laws, which guide the
working of our everyday life. They belong more properly to the puranas, to the Smiritis, and
not the shruti custom of one age, of one yuga, have not been the customs of another, and as
yuga comes after yuga they will have to change”.13
Henry Maine classified Indian Society and its legal system as ‘Static’, this is because of his
utter ignorance he might have relied his counterpart’s explanation (distorted) rather than
understanding Indian Society as it stood, in India the King himself was subject to the law;
that arbitrary power was unknown to Indian political theory and jurisprudence and the king’s
right to govern was subject to the fulfillment of duties the breach of which resulted in
forfeiture of kingship; that the judges were independent and subject only to the law; that
ancient India had the highest standard of any nation of antiquity as regards the ability,
learning, integrity, impartiality, and independence of the judiciary, and these standards have
not been surpassed till today; that the Indian judiciary consisted of a hierarchy of judges with
the Court of the Chief Justice (Praadvivaka) at the top, each higher Court being invested with
the power to review the decision of the Courts below; that disputes were decided essentially
in accordance with the same principles of natural justice which govern the judicial process in
the modern State today: that the rules of procedure and evidence were similar to those
followed today; that supernatural modes of proof like the ordeal were discourage; that in
criminal trials the accused could not be punished unless his guilt was proved according to
law; that in civil cases the trial consisted of four stages like any modern trial – plaint, reply,
12
13
http://www.legalservicesindia.com/article/article/the-legal-system-in-ancient-india-1391-1.html
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hearing and decree; that such doctrines as Res Judicata (prang nyaya) were familiar to Indian
jurisprudence; that all trials, civil or criminal, were heard by a bench of several judges and
rarely by a judge sitting singly; that the decrees of all Courts except the King were subject to
appeal or review according to fixed principles; that the fundamental duty of the Court was to
do justice "without favor or fear".
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ADMINISTRATION OF JUSTICE IN PRE-INDEPENDENT INDIA
The British ruled India for a period of almost about 190 years. Yet, the English set up a poor
copy of the British judicial system as Indian judicial system.
The judges, in pre-independence India, were the symbol of imperial power. Hardly after 20
years of Ranjit Singh's death, had the whole continent of India passed into the hands of East
India Company. The motto of the English was not to provide justice to the local people but
the only motive behind these efforts was to replace the existing judicial system to mold the
local people according to their own desire of ruling them in the long run. The concept of jury
was anathema since it would have involved the local people in decision making process. All
nations, which came to India, tried to establish their monopoly on trade and started to take
part in local affairs. The Portuguese was the first country which came to India for trade. Yet,
the English only succeeded. Owing to luxuries and weak military position of the Mughal
government, the British won in the wars with fulcrum of local rulers. A perusal of world
history, it evinces that if any nation conquered the other nation, they enforced their own
system of administration. Similarly, the British rulers changed the whole administration of
our country especially the law and justice. However, Even after Indians were appointed as
judges, any contact between judges and the common people was discouraged. The Europeans
came to India through Sea route as a trading nation, and ultimately gave a new turn to the
Indian history. Their commercial instinct led them to discover the sea route to India. They
had no intention to conquer the country; their objective was to establish commercial relations
with India.14
Dravidian, the local inhabitants of India had established their own system of Judiciary. Then
Arians adopted that system with slight modifications. According to the traditions and
customs of Hindu caste system under the panchayat system, the cases were decided The Raja
was the highest court of appeal. There were civil and criminal courts at local level. The
judges were advised by the learned Brahamins as to the interpretation of Hindu law. The
punishments were based on caste system. The Arabs entered into India in 712. A.D: They
introduced Qazi system for criminal cases in the areas of their influence while retained the
old panchayat system as to civil cases. Delhi Sultanate; They introduced the several changes
in the existing Judicial system and made it more human. The Qazis were appointed to deliver
of justice. Islamic Judicial System; The Mughals introduced Islamic judicial system. Yet,
they did not introduce purely Hindu Panchayat system, despite it was the mixture of Islamic,
14
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Persion, and local Hindu system. At local level, the Panchayat system was limited up to the
religious matters of Hindu community. Having the Turkish occupied and took control of the
Mediterranean Sea, the European trade was totally at the mercy of the Muslims. Ultimately, a
new trade route was discovered to reach Asia. The English started changing the prevailing
judicial system in India in order to strengthen their power. Sea route: In 1498, Vasco de
Gama discovered sea route to India and reached the port of Calicut. Thus, the Portuguese, the
first Christian nation, came to our country. Their policy was ''Divide and Rule''. The British,
the Danes, the Dutch, and the French reached India: After arrival of Portuguese, the British,
the Danes, the Dutch, and the French also reached India. All of these nations came to India
for trade. But, out of them, the English people succeeded to establish their power in India.
The Governor and company were authorized to make laws. However, owing to limited
legislative right, it led to establish a new judicial system in India. Arrival of the East India
Company in Sub-continent: Queen Elizabeth granted a charter as to monopoly of Eastern
trade for period of 15 years in the month of December, 1600. Elizabeth 1st charter during the
year 1600: Because of this charter, the British East India Company empowered it to make
laws, constitutions, orders and ordinances as necessary for the governance of its servants.15
Thus, the British East India Company empowered to impose punishments subject to English
laws and customs. In 1609, after reaching the court of Emperor Jehangir, the English
expressed their desire intention for permission to them for settlement at Surat. In 1612,
nevertheless the Portuguese force attacked the English at Surat, the English defeated the
Portuguese. In 1613, a farman was sent by Emperor Jahangir permitting the English to
establish a factory at Surat. In 1615, the England entered into a commercial treaty with
Mughal Emperor. In 1621, the British East India Company produced the Laws, a compilation
of rules: These laws and rules were quite new to India. Thus, the judicial condition, in those
days, was seriously strict and stringent for Indians. In 1624, the first judicial power that was
granted to the company by the King of Britain: On the request of the East India Company,
King James 1 granted the judicial powers to punish civil and military personnel of company
in India by martial as well as municipal laws. In 1634, A Golden Farman was granted to the
British by the Sultan of Golconda. It allowed the British to trade in the kingdom of Golconda.
The British had to pay 500 Pagodas per year. In 1639, Inasmuch as Francis Day obtained the
lease of a land from the ruler of Chandragiri, It became a foundation of new city "Madaras".
Thus, the Fort St. George was become the first fort in India by the East India Company. In
15
https://archive.org/details/administrationof00morluoft
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1651, having grant of concession for trade by Nawab Shuja of Bengal, the English strongly
established in Bengal.
In 1652, the Chaultry Court started operation in Madras: In this Court, civil cases like cases
of debt upto 50 pagodas were settled. Besides that cases, as to breaches of peace, were
settled. This Court presided by one Indian and two Englishmen. In 1661, the Charter Act
which was granted by Charles II (1630-1685), made provision for the use of English criminal
law in India. In 1666, in Madras, an early styled court consisted of the Governor-in-Council.
In 1668, in response to the issuance of a new Charter, Thomas Papillon and Mr. Moses
prepared a draft code of laws. Following their revision and approval, they took effect in
January 1670 in Bombay. Thomas Papillon (1623-1703) was member of the Company`s
Court of Committees. Mr. Moses was Solicitor of the East India Company. On 2nd February
1670, Gerald Aungier, who was the Governor of Bombay, initiated a scheme for the first
provision of justice in Bombay. He established two precincts of justice, each with five
Englishmen. Appeals from these bodies were sent up to the Deputy-Governor and Council for
hearing. At this appellate level all trials were held with juries. On 8th August 1672, Aungier
established a Court of Judicature for Bombay . George Wilcox was its first judge. During this
time the use of Portuguese laws were abolished to support British law. On 16th August, 1672,
Wilcox, who was Judge of the Bombay Court of Judicature, started a Court of Conscious.
Because of this, even the poor could receive free justice. It worked every Saturday. On 18th
March 1678, under the instructions of Streynsham Master (1640-1724), the Madras Court
operated the judicial activities. The new court tried civil and criminal cases according to
English law.16
The Charter granted in the year of 1683: It authorised the establishment of Courts of
Admiralty in the three Presidency cities. Additionally The Court held the power to apply
martial law in whole India. In 1685, in Bombay, the President of the Court of Judicature
suggested that civil appeals from the Admirality Court appeals should pass to the Deputy
Governor and Council. In 1686, the Madras Court ceased operation in favour of the Court of
Admiralty. Cases could also be accepted by the latter Court from the Madras Mayor`s Court.
In 1690, For a time the Deputy Governor and Council handled some judicial matters
inasmuch as no Judge remained to ensure the continuance of the Court of Judicature due to
Sidi's attac in Bombay. In 1692, the Government of Bombay established the office of the
Coroner. In 1694, in Calcutta, the Council possessed a zamindar status. therefore, a
16
V.D Kulshreshtha, Landmarks in Indian Legal and Constitutional History (Eastern Book Company, 11th
Edition, 2016)
17 | P a g e
Zamindari Court was convened to administer both civil and criminal cases among the
Indians. In 1698, the Company also acquired zamindari rights at Sutanati and Govindpur.
In 1698, the new Charter, as granted by King William III (1650-1702), determined that the
East India Company would carry out its business in accordance with such by-laws,
constitutions, orders, rules and directions provided by its General Court as were not
repugnant to the laws of England. In 1700, Bengal was established as a Presidency with a
Governor-in-Council and therefore the Company granted full judicial authority.
In 1704: The development and staffing of judicial institutions in Bombay had been delayed
until the arrival of Sir Nicholas Waite as Governor of Bombay in November 1704. In 1712,
the practice of one-person judicial operations practiced during the preceding decade was
ended inasmuch as the Council of Bombay passed a resolution declaring that it would sit two
days a week to hear judicial matters. In 1716, the East India Company instructed to form a
sub-committee of the Governor`s Council to deal judicial matters. In 1717, the Governor-in-
Council of Bombay announced as to establishment of a new Court of administration. The
court started working since 25th March, 1718. Laurence Parker was the Chief Justice. The
court possessed wide civil and criminal jurisdiction. Appeal of its decisions could be made to
the Governor-in-Council. Justice was delivered from the bench.17
In 1726, the Crown granted Letters Patent which provided for the re-establishment of a
Mayor`s Courts, which practiced English common and statue law, in Madras, Calcutta, and
Bombay. They were composed of the Mayor and nine Aldermen, seven of whom were
required to be British subjects. They possessed jurisdiction in civil cases with appeal to the
Governor-in-Council and later to the Privy Council in case of the value exceeded 4000
rupees.
In 1753, Because of the measures of the 1726 Charter Act, the new Charter Act modified the
jurisdiction of the Mayor`s Court in Bombay, Madras and Bengal. This Act vividly explained
that with the consent of both parties, the cases between two Indians could only appear before
the Mayor`s Court. This Act provided for a Court of Record, consisting of the President and
Council to hear appeals from the Mayor`s Court. In 1754, As the Royal troops arrived to
India, the terms of the Mutiny Act and the Articles of War made applicable to Company`s
military forces. The result of Plassy, in 1757, paved the way for the British conquest of
Bengal and eventually of the whole of India. In 1765, in Bengal, Nawab granted dewany to
17
V.D Kulshreshtha, Landmarks in Indian Legal and Constitutional History (Eastern Book Company, 11th
Edition, 2016)
18 | P a g e
the East India Company that led the responsibility for working Dewany Courts not only in
Bengal but also in Orissa and Bihar.
In 1769, in recognition of some oppression and judicial chaos in the interior, or `Mofussil`
(places and areas that did not fall under city categories, remote districts), the Company
appointed some Covenanted Servants to act as Supervisors of the Country Courts.
On 28th April 1772, as ordered by the Company's Court of Directors, Warren Hastings
(1732-1818), who was Governor of Bengal, directed the Patna and Murshidabad councils to
introduce not only judicial administration but also revenue administration during this period,
the Mohamed Reza Khan and Shitab Roy were arrested as ordered by Warren Hasttings.
Mohamed Reza Khan and Shitab Roy were former administrators of Judicial and revenue
functions in India. Warren Hastings became the first governor-general of Bengal.
On 15th August 1772: Role of Warren Hastings:
1) The first British Indian law code, in Bengal, Bihar and Orissa, was introduced during
Hastings period.
2) Two courts viz the Fajudari adalat and the Dewani adalat were introduced. The Fajudari
adalat dealt with criminal cases and the Dewani adalat dealt with Civil cases.
3) Besides that the Sadar Dewani adalat, as court of appeal in civil cases, and the Sadar
Nizamat adalat as criminal cases appeallate court , were established in Calcutta.
4) This system was in force upto 179318.
''Vivadarnava Setu'' (Code of Law): Hindu scholars, of Hindu Commission, prepared a

code of Law and it was called as ''Vivadarnava Setu''. This code of Law was prepared in
Sanskrit during the period of 1773-1776.
"Regulating Act" in 1773 : Based on the recommendations of a select and a secret

committees, ''The Regulating Act'' was passed by the parliament passed in 1773 which
introduced parliamentary supervision over the Company in India and also modified its
constitution both in England and in India.
The Supreme Court of Judicature at Fort William, Calcutta was founded by an Act of
Parliament in 1774. It replaced the Mayor's Court of Calcutta and was British India's highest
court from 1774 until 1862, when the High Court of Calcutta was established.
From 1774 to the arrival of Parliament's Bengal Judicature Act of 1781 in June 1782, the
Court claimed jurisdiction over any person residing in Bengal, Bihar or Orissa. These first
18
19 | P a g e
years were known for their conflict with the Supreme Council of Bengal over the Court's
jurisdiction. The conflict came to an end with Parliament's passing of the Bengal Judicature
Act of 1781 which restricted the Supreme Court's jurisdiction to either those who lived in
Calcutta, or to any British Subject in Bengal, Bihar and Odisha, thereby removing the Court's
jurisdiction over any person residing in Bengal, Bihar and Odisha.
The courthouse itself was a two storied building with Ionic columns and an urn-topped
balustrade and stood by the side of the Writers’ Buildings. The building also served as the
Town Hall of Calcutta at one time. It was demolished in 1792 and replaced by the present
building in 1832.19
In 1780, the judicial powers of the six (6) provincial Councils were transferred to six (6)
Dewany adalats. These Adalats were presided over by servants of the English Company.
In 1781 the number of these courts was increased to 18 (eighteen) and they tried all kind of
civil cases. The duties of Faujdars were transferred to the District Judges. The criminals were
tried in the Faujdari adalat under Indian judges, yet, the ultimate control of vested with
headquarter.
In 1784, The British parliament passed an Act defining more clearly the jurisdiction of the
Supreme Court, exempting from it the official acts, the Governor General and Council, the
Zamindars or farmers, and all matters concerning revenue collection.
(1790): The East India Company made it clear that taking control of Criminal justice system
in all parts of India (except Bombay) under the Company control. Dewany (money)
management of was offered to the Compnay by the the Mughal ruler. Zamindars, which
collected revenue, used judicial power and thus the Zamindars came under the control of the
British. Preparation of draft of the Indian penal code by Macauly: The charter of 1833
provided base for their consolidation of reforms and codification of laws, and accordingly a
law commission was appointed in the year 1834. Macauly prepared a draft of the Indian penal
19
(Universal Law Publishing, 8th Edition, 2007)
20 | P a g e
code but little was done after his departure, and the commission was finally abolished. Before
the return of Macaulay to India, two parties had been formed, called the orientalists and the
Liberals. Macauly also took part in the controversy. He presided over the deliberations of two
parties and the casting vote of Macauly as President defeated the contradictory.
"The beginning of modern Indian public law appeared in 1833 with the creation of the Indian
law commission which in due time (1861) produced the Indian penal code and later the codes
of criminal and civil procedure."20
Under the Charter of 1853, a new commission was appointment for the planning to create
High Courts in India on the lines of British judicial system and for the compilation of uniform
code of law applicable to the whole judicial system irrespective of religion and creed.
"The Indian 'Mutiny' of 1857 hardened the imperial resolve to take India at any cost." The
Act of 1858, which embodied these changes, made provision for a council of India and
Secretary of State for India. The most powerful trading company of British died its natural
death and India came under British parliamentary control.
The government of India under the parliamentary control of British introduced the stamp duty
on the judicial cases.21
The establishment of High Courts in Calcutta, Bombay and Madras: Under the
recommendations of commission appointed in 1853, The Government introduced important
reforms in the judicial system. Their recommendations were accepted and in 1861 the Indian
High Courts act authorized the establishment of High Courts in each of the following towns;
Calcutta, Bombay and Madras in place of old Supreme Court, Sadar Fojudari Adalat and the
Sadar Dewani adalat were abolished after having a age of 90 years.
Inasmuch as the penal code and first criminal procedure code came into force, the Islamic
system of justice disappeared in 1862.
The Crown was empowered to appoint the Chief Justice and Judges for these High Courts.
The appeal against the decisions of high courts was presented before the judicial committee
of the Privy Council. The Privy Council was situated in London.
"In 1866 a regulation, which was amended in later years, established a Chief Court for the
Punjab much on the same lines as the High Courts, though the judges were to be appointed by
the Governor General in Council and not as in the case of the High Courts by the Crown."
20
21
21 | P a g e
In 1872 a Court headed by Judicial Commissioner was established in Burma and various
improvements were made in 1875. After the extension of British territory in Burma further
amendments became necessary and Act VI of 1900 established a Chief Court in Burma.
The Indian National Congress (1885): The congress drew the attention of the government for
separation of judicial and executive functions in the administration of criminal justice.
In 1911, under the Indian High Courts Act, three High Courts were established at Patana,
Lahore and Rangoon. This act enabled the government to establish new High Courts and
raise the strength of judges from fifteen to twenty. Due to certain reasons the British
government had been reluctant to change the Indian legal system in the beginning as far as to
respect the local laws and customs.22
The British government made no change in the composition of High Court judge's till the
independence in the provisions of the act 1861.
The Government of India Act, 1935:
i) Under the Government of India Act, 1935, the government abolished the old proportional
arrangements of judges of high courts.
ii) Thus, the old rule of appointing the Chief Justices exclusively from among barristers or
advocates was modified to the extent that they now might be appointed either from among
the pleaders of High Courts or from among the officers of the Indian Civil Service.
iii) An important change in the judicial system was proposed to stable the federation.
Sections 200 and 203 of the Government of India Act, 1935 provided for the creation of
Federal Court, which was normally to be located at Dehli and was to consist of a Chief
Justice and not more than six puisne judges.
iv) The qualification of judges: it would be at least five years’ experience as judge of high
court or at least ten years’ experience for barrister and advocates of Scotland or at least ten
years of experience for pleader of high court of a province.
v) The eligibility of the chief justice would be at least fifteen years’ experience as pleader,
barrister or advocate.
The Federal Court:
i) On 1st October, 1937, the Federal Court was constituted. The chief justice and Judges of
Federal Court were to be appointed by the Crown and were to hold office till the age of 65
(sixty-five).
22
(Universal Law Publishing, 8th Edition, 2007)
22 | P a g e
ii) Sir Maurice Gwyer played important role in drafting of 1935 Act for India., and hence he
became the first chief justice of the federal court of India.
iii) The Privy Council interprets of the constitution.
iv) The final appellate authority of Privy Council was kept intact while it should vest in the
Federal Court, as it is required in the federation.
v) Macauly's words reflect the thinking of the British Government for future of India. ''We
are trying to give a good government to people of India to whom we cannot give a free
government''.
vi) The federal court declared the 'defence of India rules' as ultra vires, proving its
independent and impartial authority, indeed was a turning point for the judicial development
in India.
23 | P a g e
THE MAKING OF THE INDIAN CONSTITUTION
The Constitution of India was not prepared in haste but the process of the evolution of the
constitution began many decades before India became independent in 1947.
The process continued unabated since it origi-nated in the freedom struggle till a new
constitution was drafted after prolonged debates and discussions in the Constituent Assembly.
The day 26th of January, 1950 was a red-letter day in the history of India. On that day the
written constitution of India came into operation.
January 26th was purposefully chosen (as the date on which the constitution became
operative) because since 1930, the day has been celebrated as the day of complete
independence throughout India by millions of people. It is very befitting to declare such a
historic day as the day of operation of the Constitution of Republic of India. The Constitution
of India was the longest written consti-tution having the best elements of all the existing
constitutions up to that date.
The Constitution of India is the modern sacred text of the contemporary India. It reflects the
new aspirations and values of the people of India and testifies how the people of India are the
supreme masters in all matters concerning the welfare of Indians.
A galaxy of learned wise men interested in the longevity of the emerging nation of India
framed the constitution in its present form after a thorough debate and discussion of each
proposal. The nationalists consciously, popularized the concepts of parlia-mentary
democracy, republicanism, civil liberties, social and economic justice which happen to be the
most basic tenets of the constitution.23
23
Dr. NV Pranajape, Indian Legal And Constitutional History
24 | P a g e
Bipan Chandra rightly remarks, “When the constitution in 1950 adopted a parliamentary form
of government, with a cabinet led by a prime minister it was not, as is commonly supposed,
the British parliament that it was emulating. It was formalizing nationalist practices, which
the people were already familiar with”. Even the spirit of democracy was familiarized by the
national movement. Bipan Chandra correctly points out, “this found expression in widespread
mass partic-ipation. It ensured a place for adult franchise after independence”.
A view is in circulation that the British initiated a modern responsible constitutional
government in India and the constitution was merely the culmi-nation of the series of
constitutional initiatives made by them in 1861, 1892, 1909, 1919 and 1935. This view is not
totally correct as the British government conceded reluctantly and belatedly only partially the
demands of the leaders of the national movement and tried to reduce the intensity of the
movement as a last resort from time to time.
Gandhi’s statement made in 1922 proves “Swaraj will not be a free gift of the British
Parliament. It will be a declaration of India’s full self-expression. That it will be expressed
through an act of Parliament is true. Swaraj can never be a free gift by one nation to another.
It is a treasure to be purchased with a nation’s best blood. It will cease to be a gift when we
have paid clearly for it”.24
This statement of Gandhi clearly proves beyond doubt that the British did introduce
constitutional reforms by their voluntary initiative is a myth. No doubt, the British introduced
the principle of election in the 1892 Indian Council Act in partial response to a sustained
struggle by the press and the Indian nationalists for more than two decades and while the
nationalists demanded elections to the councils and elected majorities and greater powers to
the non-official members, the British by the Act of 1892 provided for election principle but
limited it to minority only.
There was a see-saw battle between the demands of the national movement and the
concessions granted through the Acts of 1909, 1919 and 1935. The leaders of the national
movement started demanding for grant of responsible government in India from 1890
onwards and by 1916 they began to “espouse the doctrine of self-determination or the right of
the Indians to frame their own constitution”. Thus, the desire to have a constitution based on
self-determination was as old as 1916
In response to the continuous demand of the national movement, the British government
appointed all-white Simon Commission in November 1927 to recommend constitutional
changes. The Secretary of State, Lord Borkenhead, challenged the Indians “Let them produce
24
Dr. NV Pranajape, Indian Legal And Constitutional History
25 | P a g e
a constitution which carries behind it a fair measure of general agreement among the great
peoples of India” in 1925 and reiterated the challenge again in 1927, moving a bill for the
appointment of the Simon Commission.
In response the national movement as one man boycotted the Simon Commission in all parts
of India and appointed a committee with Motilal Nehru as the Chairman in 1928 “to
determine the principles of the constitution for India”. The Nehru report was submitted on 10
August, 1928. It was an outline of a draft constitution for India. Most of its features were later
included in the Constitution of India. It visualized a parliamentary system with full
responsible government and joint electorates with time bound reservation of seats for
minorities. The Nehru’s report laid special emphasis on securing fundamental human rights
for the people of India. Of the nineteen rights listed in the Nehru report, ten were
incorporated into the constitution. The Nehru report has recommended that “the redistribution
of provinces should take place on a linguistic basis”.25
This was followed by the declaration of complete independence as their objective and
followed with the launching of mass civil disobedience movement in April 1930. In 1934, the
Congress Working Committee rejected the white paper presented by the British government
on further constitutional reforms and resolved that the “only satisfactory alternative to the
white paper is a constitution drawn by a Constituent Assembly elected on the basis of adult
suffrage or as near it as possible”.
After 1934 the demand for the Constituent Assembly became very frequent and they included
it in the Congress manifesto for the year 1936-37 elections. The Congress won majority of
states in 1937 elections and in its Faizpur session demanded the newly elected members of
the assemblies to articulate the demand for a Constituent Assembly as soon as possible in the
new legislatures.
The demand for the Constituent Assembly become vociferous and in the meanwhile the
Second World War broke out in 1939 and in order to secure the cooperation of the Indians in
the Second World War, the British for the first time announced in 1940 by August offer that
the framing of the new constitution should be primarily the responsibility of the Indians
themselves. It also offered to set up, after the end of the war, “a body representative of the
principal elements in India’s national life, in order to devise the framework of the new
constitution”.
This offer, unfortunately, did not spell out, how the body is going to be consti-tuted, and also
the method to be followed in deciding the membership of the body to be constituted. This
25
JK Mittal, Indian Legal and Constitutional History (Allahabad Law Agency)
26 | P a g e
vague aspect proves that the British reluctantly agreed to this idea of Constituent Assembly
and were not serious about its implementation.
Consequently, this offer of 1940 was rejected by all the shades of nationalists and the
Congress Party started the Individual Civil Disobedience movement to register their protest.
In 1942, the British government appointed Cripps Mission. The Cripps proposals
categorically stated that the constitution would be the sole responsibility of the Indians alone.
The idea of the Constituent Assembly was also accepted and they spelt out its modalities and
in other repeats, it failed. Once again there was confrontation between the Congress and the
British, which resulted in the Quit India movement of 9 August, 1942. For the first time
openly and vehemently, the nationalists demanded the British to ‘Quit India’ and exhorted the
Indians ‘do or die’ in this struggle. The Government of India took all measures to suppress
this Quit India struggle and at the end of the war in 1945, they issued a white paper, which
was followed by the abortive Simla Conference.26
The victory of the Labour Party in England and change in the guard enabled the British
government to declare and promise to convene a constitution-making body as soon as
possible. The Cabinet Mission was appointed to carry out this purpose and it visited India in
1946, on 24 March. After a lot of deliberation between the Congress and the Muslim League
and the British, finally the Constituent Assembly came into existence.
26
27 | P a g e
INDIAN JUDICIAL SYSTEM: POST INDEPENDENCE
The Indian Judicial System is one of the oldest legal systems in the world today. It is part of
the inheritance India received from the British after more than 200 years of their Colonial
rule, and the same is obvious from the many similarities the Indian legal system shares with
the English Legal System. The frame work of the current legal system has been laid down by
the Indian Constitution and the judicial system derives its powers from it.
The Constitution of India is the supreme law of the country, the fountain source of law in
India. It came into effect on 26 January 1950 and is the world’s longest written constitution.
It not only laid the framework of Indian judicial system, but has also laid out the powers,
duties, procedures and structure of the various branches of the Government at the Union and
State levels. Moreover, it also has defined the fundamental rights & duties of the people and
the directive principles which are the duties of the State.
In spite of India adopting the features of a federal system of government, the Constitution has
provided for the setting up of a single integrated system of courts to administer both Union
and State laws. The Supreme Court is the apex court of India, followed by the various High
Courts at the state level which cater to one or more number of states. Below the High Court’s
exist the subordinate courts comprising of the District Courts at the district level and other
lower courts.
An important feature of the Indian Judicial System is that it’s a ‘common law system’. In a
common law system, law is developed by the judges through their decisions, orders, or
judgments. These are also referred to as precedents. Unlike the British legal system which is
entirely based on the common law system, where it had originated from, the Indian system
incorporates the common law system along with the statutory law and the regulatory law.
Another important feature of the Indian Judicial system is that our system has been designed
on the pattern of the adversarial system. This is to be expected since courts based on the
common law system tend to follow the adversarial system of conducting proceedings instead
of the inquisitorial system. In an adversarial system, there are two sides in every case and
each side presents its arguments to a neutral judge who would then give an order or a
judgment based upon the merits of the case.27
Indian judicial system has adopted features of other legal systems in such a way that they do
not conflict with each other while benefitting the nation and the people. For example, the
27
Sukhdev Singh, Legal and Constitutional History of India: An Essential Revision Aid for law students
(Universal Law Publishing, 2nd Edition, 2015)
28 | P a g e
Supreme Court and the High Courts have the power of judicial review. This is a concept
prevalent in the American legal system. According to the concept of judicial review, the
legislative and executive actions are subject to the scrutiny of the judiciary and the judiciary
can invalidate such actions if they are ultra vires of the Constitutional provisions. In other
words, the laws made by the legislative and the rules made by the executive need to be in
conformity with the Constitution of India.
The powers and the jurisdiction of the Supreme Court, the High Courts and subordinate
courts like the District Courts are discussed below.
Supreme Court of India
One of the most important powers of the Supreme Court of India is that any law declared or
order/judgment passed by it is binding on all the courts within the territory of India.
The jurisdiction and powers of the Supreme Court (SC) are defined under Articles 131 to 142
of the Indian Constitution. The jurisdiction includes original, writ, and appellate jurisdiction.
Original Jurisdiction refers to the power of the court to hear disputes when they arise for the
first time. By exercising its power of Original jurisdiction the Supreme Court can hear
disputes between, Government of India (GoI) and one or more States, or GoI & any State or
States on one side and one or more States on the other, or
Two or more States, if it involves a question - of law or fact - on which depends the existence
or extent of a legal right.28
The Supreme Court has also been conferred the power to issue directions or order or writs
under Article 32 of the Constitution for the enforcement of any of the rights provided under
Part III of the Constitution, including the Fundamental Rights. This is referred to as the Writ
jurisdiction of the Supreme Court. The writ jurisdiction of the Apex court under Article 32 is
part of its original jurisdiction.
Appellate jurisdiction refers to the power of the Apex court to hear appeals against any
judgment, decree or final order (or sentence) of a High Court in a constitutional, civil or
criminal case, where exists a substantial question of interpretation the constitution, or a law of
general importance in case of a death sentence awarded in criminal matters.
However, an additional requirement is that the concerned High Court (HC) under Article
134A has to certify that the case in question is fit for an appeal to the SC.
The jurisdiction of SC also encompasses matters which fell within the jurisdiction of the
Federal Court under any law just before the commencement of the Indian Constitution.
28
Sukhdev Singh, Legal and Constitutional History of India: An Essential Revision Aid for law students
(Universal Law Publishing, 2nd Edition, 2015)
29 | P a g e
The Supreme Court can also grant special leave to appeal against any judgment, decree,
determination, sentence or order passed by any court or tribunal in the territory of India in
any matter. The exception to this rule is the orders, judgments etc., passed by any court or
tribunal constituted by or under any law relating to the Armed Forces.
The Appellate jurisdiction of SC can be read in more detail under Articles 132 – 136.
Apart from the original, appellate and writ jurisdiction, the Supreme Court also has special
advisory jurisdiction regarding matters referred to it by the President if India under Article
143 of the Constitution.
The Apex court also has the power and authority to review any order or judgment passed by
it as well as transfer cases from one High Court to another or from the District Court of one
state to the District Court of another State.29
High Courts of India
The High Courts of India are the supreme judicial authority at the State level. There are
currently 21 High Courts in the country and of these the oldest High Court of India is the
Kolkata High Court, which was established in the year 1862.
Their powers and jurisdiction are similar to that of the Apex court, but with a few differences
Any law declared or orders/judgments passed by them are not binding on the other High
Courts (HCs) of the country or the subordinate courts which fall under the purview of the
other HCs unless the other High Courts choose to follow such law or order or judgment.
Their territorial jurisdiction is varied.
The High Courts are the appellate authority for a State or group of States and get a lot of
matters in appeal from the subordinate courts.30
They have the power to issue writs, just like the Apex court, under Article 226 of the
Constitution, but with one difference. While the Supreme Court has the power to issue writs
29
Dr. SC Tripathi, Indian Legal And Constitutional History ,2015 Reprint (3rd Edition)
30
Nilashi Jatar and Laxmi Pranajape, Legal History - Evolution Of The Indian Legal System
30 | P a g e
to enforce only the rights provided under Part III of the Constitution, the High Courts can
issue writs for enforcement of the rights under Part III as well as “for any other purpose”.
Just like in the case of the Supreme Court, the writ jurisdiction of the High Court is also part
of their Original jurisdiction, since all writ petitions are filed directly before the High Court.
Apart from writ petitions, any civil or criminal case which does not fall within the purview or
ambit of the subordinate courts of a State, due to lack of pecuniary or territorial jurisdiction,
can be heard by the High Court of that State. Also certain other matters or issues may be
heard by the High Court as part of its original jurisdiction, if the law laid down by the
legislature provides for it. For example, the company law cases fall within the original
jurisdiction of the High Court.
Therefore, the High Courts’ work primarily consists of appeals from the lower courts as well
as the writ petitions filed before it under Article 226.
The territorial jurisdiction of a High Court, as mentioned earlier, is varied.
Both the Supreme Court and the High Courts are courts of record and have all the powers
associated with such a court including the power to punish for contempt of itself.
The Subordinate Courts
The District Courts are at the top of all the subordinate or lower courts. They are however
under the administrative control of the High Court of the State to which the district court
belongs to.
Their jurisdiction is confined to the districts they are responsible for, which could be just one
or more than one. The original jurisdiction of the District Courts in civil matters is confined
by not just the territorial limitations, but by pecuniary limitations as well. The pecuniary
limitations are laid down by the legislature and if the amount in dispute in a matter is way
above the pecuniary jurisdiction of the District Court, then the matter will be heard by the
concerned High Court of that State.In case of criminal matters, the jurisdiction of the courts is
laid down by the legislature.
The decisions of the District Courts are of course subject to the appellate jurisdiction of the
High Courts.
31 | P a g e
Apart from these judicial bodies who enforce the laws and rules laid down by the legislature
and executive and also interpret them (the Supreme Court & High Courts), there are
numerous quasi-judicial bodies who are involved in dispute resolutions. These quasi-judicial
bodies are the Tribunals and Regulators.31
Tribunals are constituted as per relevant statutory provisions and are seen as an alternative
forum for redressal of grievances and adjudication of disputes other than the Courts.
Some of the important tribunals are, Central Administrative Tribunal (CAT), Telecom
Disputes Settlement Appellate Tribunal (TDSAT), Competition Appellate Tribunal
(COMPAT), Armed Forces Tribunal (AFT), Debt Recovery Tribunal (DRT), etc.
The kinds of cases the tribunals hear are limited to their specific area. That is TDSAT can
hear only matters related to telecom disputes and not matters of armed forces personnel. So
the area of operation of these tribunals are marked out at the beginning itself by the statute
under which it’s constituted.32
The same hold true for the various Regulators like – TRAI, DERC, etc. They regulate the
activities of companies which fall under their purview as per the statute.
Thus, the Indian Judicial System is a mix of the Courts and the Tribunals & Regulators, and
all these entities working together as part of an integrated system for the benefit of the nation.
The Indian Legal system is based on a hybrid judicial system comprising of customs,
precedents and legislative law, all sources of law.
Customs are the oldest source of law and they played a significant role in law-making. Also
known as “Customary Law‟, Keeton defines it as “those rules of human action, established
by usage and regarded as legally binding by those to whom the rules are applicable, which
are adopted by the courts and applied as sources of law because they are generally followed
by the political society as a whole or by some part of it”. Being unwritten, it is sometimes
called jus non-scriptum, in contrast to legislation which is called jus scriptum.33
Not every custom becomes law. For a custom to be valid, 2 main requirements should be met.
Firstly, there must be a material element, the Repetitio- the custom must be observed
uninterruptedly for a very long time. And secondly, there must be an intellectual element- the
Opinion Necessitates- the general public must support the custom and feel a legal obligation
to adhere to it. A valid custom is law unless overruled by legislation. With time, custom as a
source of law is being replaced by statutes and judicial precedents.
31
Nilashi Jatar and Laxmi Pranajape, Legal History - Evolution Of The Indian Legal System
32
33
32 | P a g e
Statutes (or Statutory law or the legislation) is the most important and modern source of law.
In India, laws are promulgated by the Parliament and state legislatures for the guidance or
conduct of persons to whom the statute is applicable expressly or by implication („Enacted
Law‟ or Statute Law). This function is empowered by the Constitution. Today, legislation is
accepted as superior to all other sources of law. It is not merely a source of new laws, but is
equally effective in abolishing those which already exists.
Another essential source of law is the judgements of the Supreme Court, High Court and
some of the specialised Tribunals. Called Judicial Precedents, they are rules of law based on
the principle that “like cases must be treated alike”. Moreover, they not only decide legal and
factual issues in a case but also, interpret/declare the law. This interpretation/declaration of
the law - the Ratio Decidendi- is a binding precedent. Judge-made laws or case laws also
exist, whereby judges apply their own common sense and justice to decide a case and
pronounce judgements. This principle by which a judicial decision becomes a precedent is
known as "Stare Decisis" (Literal meaning: “stand by the decision”). Like in England, the
practice of judicial precedents is also very prevalent in India. For instance, each court is
absolutely bound by the decisions of courts superior to it according to Article 141 of the
Constitution. The Ratio Decidendi and the Obiter Dicta of the Supreme Court constitute
binding precedents to be followed by all the other courts and tribunals. However, the
Supreme Court is not bound by its earlier decisions and may reverse certain decisions if need
be. In contrast, the judgments of a State High Court are binding on itself and on all
subordinate courts and tribunals in the State but they are not binding on another High Court
or on courts subordinate to another High Court. They can however be of great persuasive
value. And for specialised tribunals, their judgements are binding on themselves but not on
the courts or other tribunals. Literally meaning „just‟, „fairness‟ and „according to good
conscience‟, equity is another crucial source of law, especially when the existing law is
inadequate or silent with regard to a particular case. The judges then generally apply their
common sense, justice and fairness to deal with such cases.34
The Indian legal system does have some flaws. In December 2009, around 46,000 cases were
still to be heard by the Indian Supreme Court and more than 29 million cases by lower, more
local courts. The largest number of these pending cases concerned minor Motor Vehicle
Cases, petty crimes such as stealing, abusing, insult, slap, etc. Various reasons have been
proposed for this large backlog of cases, most commonly cited ones being minor corruption,
limited staffing and an acute shortage of accomplished judges.
34
33 | P a g e
Besides, in the past, simple and inexpensive dispute-resolving mechanisms like "panchayats"
or "dharmasatra" were used and these worked in a cultural context that many Indians
understood. Hence, today many rural Indians find the justice system heavily-loaded with
complex jargon and too demanding in terms of time and money. Moreover, poverty is a
permanent handicap preventing them from seeking redress from the courts, for grave wrongs
done to them by men in privileged positions.
Furthermore, corruption is rampant in Indian courts and it has even reached the highest
judicial forum, that is, the Supreme Court of India. Judges are bribed, court personnel paid
off to delay or accelerate a trial or to make a complaint disappear. People holding key
positions such as legislators or executives try to influence the judiciary by pressurising
judges. Corruption is also a form of exploitation, because people in higher positions extort
money in the shape of bribes, gifts and services, even for simple services which are actually
their duty. According to Transparency International, judicial corruption in India can be due to
large backlog of cases, scarcity of judges and complex procedures, all of which are
aggravated by a preponderance of new laws. Lastly, social justice is a fundamental aspect of
the Indian Constitution. Yet, this concept is violated too many times. There are countless
cases of social and economic injustice, increasing inequalities in most spheres of human
activity and endless discrimination against the weaker sections of society. The law and order
machinery generally favours the richer classes and other oppressors. Only rarely does
someone actively take up the case of the down-trodden people. Besides, the government
passes laws for promoting social justice in various fields, but these are not strictly enforced.
This leads to various social justice issues.
Because of these shortcomings, people are losing faith in judiciary at an alarming rate,
threatening the constitutional and democratic governance of the country. To sum up, India
owes its modern legal system to various eras- Indus Valley Civilisation, Vedic Ages, British
rule and so on. The legal system has experienced many refinements to finally being moulded
into the current common law system. It is based on a hybrid judicial system comprising of
customs, precedents, equity and legislative law, all sources of law. The Indian legal system
tries its best to protect the constitutional rights of its citizens. Yet, there is still a long way to
go to reach perfection.35
35
34 | P a g e
LANDMARK CASES BRINGING RADICAL CHANGES IN THE
INDIAN LEGAL SYSTEM
Amending the Constitution of India is the process of making changes to the nation's
fundamental law or supreme law. The procedure of amendment in the constitution is laid
down in Part XX (Article 368) of the Constitution of India. This procedure ensures the
sanctity of the Constitution of India and keeps a check on arbitrary power of the Parliament
of India.
However, there is another limitation imposed on the amending power of the constitution of
India, which developed during conflicts between the Supreme Court and Parliament, where
Parliament wants to exercise discretionary use of power to amend the constitution while the
Supreme Court wants to restrict that power. This has led to the laying down of various
doctrines or rules in regard to checking the validity/legality of an amendment, the most
famous among them is the Basic structure doctrine as laid down by the Supreme Court in the
case of Kesavananda Bharati v. State of Kerala. Along with this case there are many other
cases which brought some radical changes in the Constitution of India and the Legal System
of India.
1. Shankari Prasad Case V. Union of India, 195136

Shankari Prasad Vrs. Union of India is a landmark case in the basic structure of our
constitution. In the cases, the power to amend the rights had been upheld on the basis of
Article 368. Chief Justice Subba Rao writing for the majority six judges in special bench of
eleven, overruled the previous decisions.
2. Sajjan Singh v. State of Rajasthan, 196537

The validity of the Seventeenth Amendment was challenged in this case. The main contention
before the five-judge bench of the Supreme Court was that the Seventeenth Amendment
limited the jurisdiction of the High Courts and, therefore, required ratification by one-half of
the States under the provisions of article 368. The court unanimously disposed of this
contention, but members of the court chose to deal with a second submission, that the
decision in the Shankari Prasad case should be reconsidered. The Chief Justice
(Gajendragadkar C.J.) in delivering the view of the majority (Gajendragadkar C.J., Wanchoo
and Raghubar Dayal JJ.) expressed their full concurrence with the decision in the earlier case.
36
AIR 1951 SC 455
37
AIR 845, 1965 SCR (1) 933
35 | P a g e
The words “amendment of this constitution” in article 368 plainly and unambiguously meant
amendment of all the provisions of the Constitution; it would, therefore, be unreasonable to
hold that the word “law” in Article 13(2) took in Constitution Amendment Acts passed under
article 368.
They went on to point out that, even if the powers to amend the fundamental rights were not
included in article 368, Parliament could by a suitable amendment assume those powers. The
Chief Justice also dealt in his judgment with the wording of article 3lB. That article, he
considered, left it open to the Legislatures concerned to repeal or amend Acts that had been
included in the Ninth Schedule. But the inevitable consequence would be that an amended
provision would not receive the protection of article 31B and that its validity could be
examined on its merits.
Hidayatullah and Mudholkar JJ., in separate judgments, gave notice that they would have
difficulty in accepting the reasoning in Shankari Prasad’s case in regard to the relationship of
articles 13 (2) and 368. Hidayatullah J. said that he would require stronger reasons than those
given in that case to make him accept the view that the fundamental rights were not really
fundamental, but were intended to be within the power of amendment in common with other
parts of the Constitution. The Constitution gives so many assurances in Part III that it would
be difficult to think that they were the play things of a special majority.” Mudholkar J. took
the view that the word “law” in article 13 (2) included an amendment to the Constitution
under article 368.Article 368 does not say that when Parliament makes an amendment to the
Constitution it assumes a different capacity, that of a constituent body. The learned Judge
recalled that India had a written constitution, which created various organs at the Union and
State levels and recognized certain rights as fundamental.
3. Golak Nath vs. the State of Punjab (1967)38

In 1967, in Golak Nath vs. The State of Punjab, a bench of eleven judges (such a large bench
constituted for the first time) of the Supreme Court deliberated as to whether any part of the
Fundamental Rights provisions of the constitution could be revoked or limited by amendment
of the constitution.
Secondly, the Supreme Court of India gave a momentous judgement on the 28th February
,1967 in the famous case of Golak Nath & others Vrs. State of Punjab by declaring that the
Fundamental Rights were transcendental and inviolable and the Parliament of India had no
power to take away or abridge any of the Fundamental Rights guaranteed by the Constitution
38
1967 AIR 1643, 1967 SCR (2) 762
36 | P a g e
by way of the Constitutional amendments. Their lordship felt that the liberty of the Individual
in the Indian Constitution is subject to various “ reasonable restrictions” which are expressly
mentioned in the Constitution and that no further limitations should be imposed on it at any
time.
4. The Kesavananda Bharti vs. State of Kerala (1973)39

The decision of the Supreme Court in the Golak Nath Case has created a constitutional
deadlock. The deadlock was over in the famous case of Keshavananda Bharati and Others
vrs.State of Kerala in 1973. The Supreme Court recognized basic structure concept for the
first time in the historic Kesavananda Bharati case in 1973. Ever since the Supreme Court has
been the interpreter of the Constitution and the arbiter of all amendments made by
parliament. The court by majority overruled the Golak Nath case which denied parliament the
power to amend fundamental rights of the citizens. In this case the petitioners challenged the
validity of the 24th, 25th, 26th and 29th constitutional amendments.
This decision is not just a landmark in the evolution of constitutional law, but a turning point
in constitutional history. It is a landmark of the Supreme Court of India, and is the basis in
Indian law for the exercise by the Indian judiciary of the power to judicially review, and
strike down; amendments to the Constitution of India passed by the Indian Parliament which
conflict with or seek to alter the Constitution’s basic structure.
5. Indira Gandhi v. Raj Narain, (1975)40

Basic Structure concept reaffirmed in this case. The Supreme Court applied the theory of
basic structure and struck down Cl(4) of article 329-A,which was inserted by the 39th
Amendment in 1975 on the ground that it was beyond the amending power of the parliament
as it destroyed the basic feature of the constitution.
Four basic features
Justice Y.V. Chandrachud listed four basic features which he considered unamend able:
 Sovereign democratic republic status.

 Equality of status and opportunity of an individual.
 Secularism and freedom of conscience and religion.
 Government of laws and not of men’ i.e. the rule of law.
42nd Amendment
39
(1973) 4 SCC 225
40
1975 AIR 865, 1975 SCR (3) 333
37 | P a g e
After the decision of the Supreme Court in Keshvanand Bharti and Indira Nehru Gandhi case
the constitution (42nd Amendment) Act, 1976 was passed which added two new clauses,
namely, clause (4) and (5) to Art.368 of the Constitution. It declared that there shall be no
limitation whatever on the constituent power of parliament to amend by way of addition,
variation or repeal of the provisions of the Constitution under this Article.
This Amendment would put an end to any controversy as to which is supreme, Parliament or
the Supreme Court. Clause (4) asserted the supremacy of the parliament. It was urged that
Parliament represents the will of the people and if people desire to amend the Constitution
through Parliament there can be no limitation whatever on the exercise of this power. This
amendment removed the limitation imposed on the amending power of the Parliament by the
ruling of the Supreme Court in Keshvanand Bharti’s case. It was said that the theory of ‘basic
structure’ as invented by the Supreme Court is vague and will create difficulties. The
amendment was intended to rectify this situation.
6. Minerva Mill v. Union of India (1980)41

In this case of Minerva Mill v.Union of India, the validity of 42nd amendment Act was
challenged on the ground that they are destructive of the ‘basic structure’ of the Constitution.
The Supreme Court by majority by 4 to 1 majority struck down clauses (4) and (5) of the
article 368 inserted by 42nd Amendment, on the ground that these clauses destroyed the
essential feature of the basic structure of the constitution. It was ruled by court that a limited
amending power itself is a basic feature of the Constitution. The historical Judgment laid
down that: The amendment made to Art.31C by the 42nd Amendment is invalid because it
damaged the essential features of the Constitution. Clauses (4) and (5) are invalid on the
ground that they violate two basic features of the Constitution viz. limited nature of the power
to amend and judicial review. The courts cannot be deprived of their power of judicial
review. The procedure prescribed by Cl. (2) is mandatory. If the amendment is passed
without complying with the procedure it would be invalid. The Judgment of the Supreme
Court thus makes it clear that the Constitution is Supreme not the Parliament. Parliament
cannot have unlimited amending power so as to damage or destroy the Constitution to which
it owes its existence and also derives its power.
The Fundamental Rights and the Directive Principles are required to be viewed as the two
sides of the same coin. Both should be complementary to each other and there should be no
confrontation between them. Undoubtedly, Part IV (containing the Directive Principles) is a
41
AIR 1980 SC 1789
38 | P a g e
part of the Constitution. Even though the Directives are not enforceable in the Courts of law,
Article 37 clearly says that “it shall be the duty of the State to apply these principles ill
making laws.
An undue importance on civil liberties and rights in total disregard of the need to bring about
social and economic justice, may lead to a mass upheaval. Any importance on the Directive
Principles alone, in total disregard of the rights and liberties, may lead to totalitarianism.
Hence a harmonious balance should be maintained between Part III and Part IV of the
Constitution and real synthesis should come out only from harmonizing the spirit of political
democracy with the spirit of economic democracy.
7. Chandra Kumar v. Union of India (1997)42

Article 323-A and 323-B, both dealing with tribunals, were inserted by the 42nd Amendment.
Clause 2(d) of Art.323-A and Clause 3(d) of 323-B provided for exclusion of the jurisdiction
of the High Court under Art.226 and 227 and the Supreme Court under Art.32.
Majority Judgment:
The judgment of CJ Sikri held that fundamental rights conferred by Part III of the
Constitution cannot be abrogated, though a reasonable abridgement of those rights could be
effected in public interest. There is a limitation on the power of amendment by necessary
implication which was apparent from a reading of the preamble Every provision of the
Constitution was open to amendment provided the basic foundation or structure of the
Constitution was not damaged or destroyed.
8. Nirbhaya Case (Amendment: Juvenile Justice Act of 2000)43

On 16 December, 2012 a brutal case of gang rape and murder shook the nation. A 23 year old
was assaulted and raped in a bus by 6 men and they threw her body on the road. Out of the 6
men 5 were adults and 1 was a 17 year old Juvenile. When they got arrested, the 5 adult men
got 10 years of prison and one of them was found dead in the jail itself during the course of
the trial. The juvenile was sent for correction facility, for three years. But brutal acts in this
case had shocked people beyond belief. Finally four convicts were awarded death penalty by
the Delhi High Court. The incident shook the nation’s conscience and sparked massive
protests and subsequently led to the replacement of a Juvenile Justice Act, 2000 i.e. the age
bar to be tried as an adult was lowerd from 18 to 16 years in cases of heinous crimes.
42
(1997) 3 SCC 261 : AIR 1997 SC 1125
43
2014(2) ACR 1615 (SC)
39 | P a g e
9. Shah Bano Begum vs Muhammad Ahmed Khan (Amendment Sec. 125 of CrPC,
1973)44
Shah Bano was a mother of 5 and was divorced at the age of 62 by her husband Muhammad
Ahmed Khan in 1978. She went to the court asking maintenance from her husband who had
divorced her. She had demanded alimony which was against the Islamic System. Even the
government ruled in favour of her husband. Keeping her health and old age in mind the
Supreme Court ruled in favour of Shah Bano maintaining secularism and welfare of women
which amended the Section 125 of the Code for Criminal Procedure.
44
(1985 SCR (3) 844)
40 | P a g e
CONCLUSION
The societies in the beginning were rudimentary and so were the laws of the societies. Laws
have grown with the growth of society. This establishes a relationship between law and
society, where law is an instrument of social change, and as Pound would put it law must be
stable, but it must not stand still. To comprehend, understand, and appreciate the present legal
system adequately, it is necessary to acquire a back-ground knowledge of the course of
growth and development of the legal history.
A peculiar feature of the legal development in India was that for long the government
endeavored to create a system of courts without ever attempting to develop a body of law.
Conscious efforts to remove these defects were made by developing a coherent body of law.
But the coherent system of law was developed only after the process of codification. Law
then became more territorial and resulted in the abridgment of the differences of law between
the resulted in the application of uniform law throughout the country. The independence of
the judiciary is fairly well assured by the constitution itself and adequate precautions have
been taken to help the judiciary to discharge their functions effectively. Law in the country is
now mostly codified and is uniform throughout the country and the objective is now to
update, reform and bring the law in conformity with the new social conditions prevailing in
the country .In conclusion, we may say that the Indian legal system provides all the
machinery for the expansion and preservation of the law.
41 | P a g e
BIBLIOGRAPHY
 Books
1. MP Jain, Outlines of Indian Legal and Constitutional History (Lexis Nexis, 7th
Edition, 2014)
2. MP Singh, Outlines of Indian Legal and Constitutional History : Including
Elements of Indian Legal System (Universal Law Publishing, 8th Edition, 2007)
3. Sukhdev Singh, Legal and Constitutional History of India : An Essential Revision
Aid for law students (Universal Law Publishing, 2nd Edition, 2015)
4. V.D Kulshreshtha, Landmarks in Indian Legal and Constitutional History (Eastern
Book Company, 11th Edition, 2016)
5. JK Mittal, Indian Legal and Constitutional History (Allahabad Law Agency)
6. Dr. SC Tripathi, Indian Legal And Constitutional History ,2015 Reprint (3rd
Edition)
7. Nilashi Jatar and Laxmi Pranajape, Legal History - Evolution Of The Indian
Legal System
8. Dr. NV Pranajape, Indian Legal And Constitutional History
 Websites
1. www.barcouncilofindia.org/about/about-the-legal-profession/
2. www.legalindia.com/evolution-of-law-“a-short-history-of-indian-legal-theory”/
3. Cbseacademic.in/web_material/doc/Legal-studies/XI/U3_Legal_Studies.pdf
42 | P a g e
ROUGH DRAFT
OF
“CONTRACT-I”
SUBMITTED TO: Mrs Sushmita Singh SUBMITTED BY:

(Faculty of Contract I) Abhishek Singh
Roll No.- 1606
Semester: 2nd
Session: 2016-2021
TOPIC
“DISCHARGE OF CONTRACT BY BREACH”
INTRODUCTION
The term “Contract” is defined in the Section 2(h) of the Indian Contract Act, 1872 as
follows: “An agreement enforceable by law is a contract.” Thus for the formation of a
contract there must be:
1. An agreement, and
2. The agreement must be enforceable by law.
Discharge of a contract implies termination of contractual obligations. This is because when
the parties originally entered into the contract, the rights and duties in terms of contractual
obligations were set up. Consequently when those rights and duties are put out then the
contract is said to have been discharged. Once a contract stands discharged, parties to it are
no more liable even though the obligations under the contract remain incomplete.
RESEARCH QUESTIONS
1. What is coercion?
2. What is duress?
3. What are the similarities between coercion and duress?
4. What are the differences between coercion and duress?
5. Comparative analysis of coercion under Indian law and duress under English law.
43 | P a g e
HYPOTHESIS
Breach occurs where one party to a contract fails to perform its contractual obligations, or the
performance is defective. A breach of contract does not per se bring a contract to an end. The
breach may give to the aggrieved party the right to terminate the contract but it is for the non-
breaching side to decide whether or not to exercise that option. The aggrieved party has a
right of election; that is to say, it can choose either to affirm the contract or to terminate it.
However, once that decision has been taken, it is, in principle, irrevocable.
A Breach may be anticipatory or actual.
TENTATIVE CHAPTERIZATION
1. Introduction
2. Discharge of Contract
3. Discharge of Contract by Breach
4. Consequences of Actual Breach
5. Comparison of Coercion with Duress
6. Conclusion
RESEARCH METHODOLOGY
For this study, primary research method was utilised. Various articles, e-articles, reports and
books from library were used extensively in framing all the data and figures in appropriate
form, essential for this study.
The method used in writing this research is primarily analytical.
BIBLIOGRAPHY
 Books
1. Dr. R.K. Bangia, Contract-I(Allahabad Law Agency)

2. Avtar Singh, Contract & Specific Relief(Eastern Book Company), Twelfth Edition
 Statutes
1. The Indian Contract Act, 1872
44 | P a g e

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CHANAKYA NATIONAL LAW UNIVERSITY

SUBMITTED TO: SUBMITTED BY:

(Signature of the Candidate)

“IF YOU WANT TO WALK FAST GO ALONE

A project is a joint endeavor which is to be accomplished with utmost compassion, diligence

Aims and Objectives………………………………………………………………………….5

2. Ancient Indian Law……………………………………………………………….10-14

3. Administration of Justice in British India………………………………………...15-23

4. Making of the Indian Constitution………………………………………………..24-27

5. Indian Judicial System Post-Independence……………………………………….28-34

6. Landmark cases bringing radical changes in the Indian Judicial System………...35-30

The aims and objectives of this project are:

The Researcher strongly believes that:

Dharma is generally mean ‘principle of righteousness’ or ‘duty’, principle of holiness and

''Vivadarnava Setu'' (Code of Law): Hindu scholars, of Hindu Commission, prepared a

"Regulating Act" in 1773 : Based on the recommendations of a select and a secret

1. Shankari Prasad Case V. Union of India, 195136

2. Sajjan Singh v. State of Rajasthan, 196537

3. Golak Nath vs. the State of Punjab (1967)38

4. The Kesavananda Bharti vs. State of Kerala (1973)39

5. Indira Gandhi v. Raj Narain, (1975)40

 Sovereign democratic republic status.

6. Minerva Mill v. Union of India (1980)41

7. Chandra Kumar v. Union of India (1997)42

8. Nirbhaya Case (Amendment: Juvenile Justice Act of 2000)43

SUBMITTED TO: Mrs Sushmita Singh SUBMITTED BY:

1. Dr. R.K. Bangia, Contract-I(Allahabad Law Agency)

1. The Indian Contract Act, 1872

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