This article is written by Raghav Nagar.

“Our lady the Common Law is a very wise old lady though she still has something to learn in telling what she knows”.[1] – FREDERICK POLLOCK

The common law, as aptly put by the fabled English jurist Sir Frederick Pollock resounds of the comprehensive nature of law. This quintessentially universal and sentient law, since its inception has acted as the derivative of human conduct, used to maintain order where there was none. But what is common law? The term in itself may seem self-explanatory though most people do not know exactly what it means: It refers to the unwritten, judge made law as opposed to written law (statutory law). Common law was developed by judges through the decisions of the courts. A common law system was first developed in England from where, with the aggressive expansion of the English empire this system of law too traversed to different parts of the world, of which India became one of its destinations. In the subsequent paragraphs we will discuss the origins of this form of law and its application within the Indian context.

COMMON LAW: DEFINITION AND ORIGINS

The Common Law is a body of law derived from judicial decisions known as case laws, rather than from statutes. The Common Law derived its authority from the universal consent and practice of the people from time immemorial. This system of jurisprudence initially originated in England. Common Law is unintelligible until expressed in a judgment. It includes those rules of law which derive their authority from the statement of principles found in the decisions of courts. This system of law includes tradition, custom and usage, fundamental principles and modes of reasoning. It is the embodiment of broad and comprehensive unwritten principles, which were derived out of natural reasoning and innate sense of justice.

A Common Law system requires several stages of research and analysis to determine the appropriate law in a given situation. The facts are ascertained properly, relevant cases and statutes are to be identified, and the principle, ideas by various courts need to be understood and applied in order to determine how they would help in understanding the point of law in question within that case. The common law is quite different from codified law as it follows the judgment while the codified law precedes it. Therefore it can be said that it is a system of rules and declarations of principles from where the judicial ideas and legal definitions are derived. This law is ever changing as its principles are influenced by the changing conditions and requirements of the society.

The origin of the common law system can be traced back to England, where after the Norman conquest (1066 A.D.) . The new ruler of England William II brought about a varied number of governmental reforms, as a consequence he also overhauled the legal setup of England.Earlier the legal system of England comprised of county courts presided by the bishop and the county sheriffs, who exercised both criminal and civil jurisdiction. William II introduced the system of Eyre, wherein four judges were appointed by the King, their main function was to review the activities of the county courts and hear cases of appeals. It was used as a tool to centralize control over local courts, thus it provided a basis for the development of common law in England.

The dawn of this system came with Henry II ascendance to power. He is considered the harbinger of a common law system as he created a system of law, common to the whole of England. Some of the features of this system were; firstly a practice developed of sending judges from his own court i.e. a central court established at Westminster, to places around the country for deciding cases in the local courts. These cases were decided with the help of local customs. Secondly, these cases were recorded and filed at the permanent court in Westminster, with the due passage of time these decided cases began to be referred in other cases having similar facts. This principle of law came to be known as precedents. Thirdly, local customs became the primary source of law as they were used in trials to decide points of law. A system of jury was also developed where citizens decided matters of law based on common law knowledge and local customs. Hence the culmination of a centralized system of law with the practice of keeping record of decided cases for future reference wherein customs also played an exemplary role to decide nuanced points of law together gave birth to what is referred to as “The common law”.

COMMON LAW IN INDIA: A BACKDROP

The existing Indian legal system can be said to have a contemporaneous existence i.e. with the advent of the English in India. During the 1600s when the enterprising English East India Company forayed into India on the backdrop of trading interests little did the Indian masses or even their future rulers know that they would shape the very foundation of the modern Indian society. This transformation happened in various ways but the most relevant of those developments was the setting up of a new type of judicial system, which was primarily based on the common law system followed in England. As the East India Company took control of territories, leased to them by the Mughals for trading purposes, they were anointed the power to govern all persons belonging to the English government and the company within these territories according to the English common laws by the Crown.

After the company won the battle of Plassey (1757), the Mughal legal system was slowly replaced by the English legal system. In the seventeenth-century admiralty courts were set up in the three presidency towns of the British i.e. Bombay, Madras, Calcutta. These courts derived jurisdiction directly from the company and not the crown to decide civil and criminal matters. In the eighteenth century through a royal charter Mayors were established, they derived authority from the crown. This was the first step in the establishment of a uniform legal system in India. A system of appeals to the Privy Council (a body of advisors to the crown) from such courts was also initiated. In the late eighteenth century, the mayor’s court was replaced with a supreme court in the presidency towns. “This was the first attempt to create a separate and independent judicial organ in India, under the direct authority of the King. The Chief Justice and puisne Judges were appointed by the King. This court had jurisdiction over civil, criminal, admiralty and ecclesiastical matters and was required to formulate rules of practice and procedure. Appeals from this court lay to the Privy Council.”[2] It was to be a court of record and was to hold such jurisdiction as the court of Kings Bench had in England by the common law of England. Local civil and criminal justice was left under a system known as the “adalat system”.

Later by the mid nineteenth century through another act of the crown i.e. Letter Patents Act of 1862, the High Courts were established in place of the Supreme Court in each of the presidency towns and were further established in other provinces as well. These courts exercised the same powers as that of the Supreme Courts and appeals lay to the Privy Council. The setting up of The Law Commission to review the Indian legal setup lead to the coding of the laws, such as the Indian Penal Code of 1862 regarding criminal matters was drafted under the stewardship of T.B Macaulay. The Evidence Act of 1872 and The Contracts Act of 1872 were envisaged by the same commission. Thus all these developments lead to the creation of a judicial system, which was predominantly based on the Common Law system of England.

COMMON LAW: DOES IT APPLY IN INDIA?

 The application of common law has been overarching in the Indian context; it has been enshrined in the Indian legal system over the space of two centuries by the English to the point that one can’t allocate an individual identity to Indian jurisprudence. Thus it can be said that common law has been applicable here though in a different format than that of England as the needs and demands of the Indian society were different from that of the English. It is to be found out that much of the law compiled in codes we have today were primarily derived from the Common Law principles. The basic statutes governing civil and criminal justice are the Indian Penal Code, 1860, Indian Evidence Act, 1872, the Code of Criminal Procedure, 1973 and the Code of Civil Procedure, 1908. It has already been discussed how these laws came into being, one thing can be said about these legislations is that they have stood the test of time with minimal amendments. Codification of laws made the law uniform throughout the country and fostered a kind of legal unity in fundamental laws. The Codes apply uniformly throughout the nation.

Another contribution to Indian legal system by Common Law has been the adversarial system of trial. In this system the accused is presumed to be innocent and the burden is on the prosecution to prove beyond reasonable doubt that he is guilty. The accused also enjoys the right to silence and cannot be compelled to reply. The truth is supposed to emerge from the respective versions of the facts presented by the prosecution and the defence before a neutral judge. Both the parties have a right to question their witnesses and the opposing side has a right to test their testimony by questioning them. . The judge acts like an umpire to see whether the prosecution has been able to prove the case beyond reasonable doubt and gives the benefit of doubt to the accused, his ultimate duty being to pronounce the judgment regarding the matter.

The system of Precedents derived from the Common Law too has wide application within the Indian legal system, a precedent in Common Law parlance means a previously decided case which establishes a rule or principle that may be utilized by the court or a judicial body in deciding other cases that are similar in facts or issue. Initially the English judges and barristers presiding and practicing in the  Indian courts followed the decisions of the courts in England, thus slowly the concept of precedents came to be ardently followed within the Indian courts. This law has been carried forward in the present day Legal system as in regard to the judgments of the Supreme Court of India the  Indian Constitution provides that “The law declared by the Supreme Court shall be binding on all courts within the territory of India.”[3]Hence it can be said unequivocally that Common Law has wide application within the Indian Legal fold as many of the features of this system have been adopted and further developed from that of The English Common Law System, even though its application hasn’t been discussed in entirety and only the major principles derived  from it have been discussed.

Thus it can be said that common law traces back its origins to England and is primarily a method of administering justice, which has incorporated different aspects of the legal pedagogy and practice with the help of deliberations of laymen and the learned over the course of time. In the Indian context the common law initially was applied for the convenience of the English, so they could govern their territories properly but, as they became the overlords of India the common law became common for Indians. There developed a symbiotic relationship between the Indian customary law and the common law which gave birth to the modern day Indian legal system. Hence we can say India has an organic law as a consequence of the common law system

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[1] (Pollock Fredreick, The genius of the common law, 1911).

[2] KG Balakrishnan, An Overview of the Indian Justice Delivery Mechanism,2008, http://www.supremecourtofindia.nic.in/speeches/speeches_2008/abu_dhabi__as_delivered.pdf.

[3] Indian Constitution, Art. 141.