Page 102 - Communication Processes Volume 3 Communication Culture and Confrontation

The Indian Legal System 77

of legislation characterized this period. The second stage began in
approximately 1860, with the extensive codification of the law. The
sources of law became more fixed and legislation became the dominant
means of modifying the law.
During the first period Hastings’ plan assumed that there was a
Hindu body of law comparable to the English one. This plan took
orthodox Brahmanic learning as the standard of Hindu law (Derrett
1961b: 80). This implies that the British authority was looking for
authoritative texts applied by officials according to specified pro-
cedures. Over that period, the British clearly stated that Indians should
be ruled by their own laws (Collector of Madura v. Mootoo Ramalinga
[1868] 12 MIA 397). Although they realized that there were a multitude
of rules and laws governing the Hindus, they insisted on searching
for an authoritative body. They made collections and translations of
ancient texts and recent commentaries, but the Indian law proved to
be elusive (Hunter 1897: 371). Maine (1890: 209) speaks of the ‘vast
gasps and interspaces in the substantive law of India’. According to
this famous British scholar, India was ‘a country singularly empty of
law’ (ibid.: 225). Many departments of law were scarcely represented
in the written shastra (Derrett 1959: 48ff, 1964: 109–10; Maine 1895:
51). It was soon acknowledged that the shastra only represented
one part of the law and that in many matters Indians were regulated
by less formal bodies of customary law. But customary law was not
sufficient and they filled the interstices of shastra and custom with
‘unamalgamated masses of foreign law’ (Maine 1895: 76) Therefore,
during that period the courts judged cases in accordance with justice,
equity and good conscience. In most cases the judges were inclined to
assume that the English law was the most suitable (Twinning 1964).
Even where Indian rules were available, their application by the British
transformed them (Derrett 1961a: 20–22).
The focus on the written law by the British was different from the
Hindu practices because usually in case of conflict between custom
and shastra, custom overrode written text (Collector of Madura v.
Mootoo Ramalinga [1868] 12 MIA 397). The British rules of evidence
provided the mechanism for the disappearance of legal effectiveness of
much customary law. There were many conditions necessary for custom
to prevail over written law (Kane 1950: 44): the former must be proven
to be immemorial ancient, uniform, invariable, continuous, certain,
notorious, reasonable (or not unreasonable), peaceful, obligatory,