Research Paper

LEGAL ASPECTS OF COLONIAL INDIA

Course: History
Submitted to/ Course Instructor: Prof. Hota Agnikumar

Submitted by: Sahir Boppana

2015-5LLB-100
1st Year B.A., LL.B. (Hons)
NALSAR University of Law, Hyderabad

1
 TABLE OF CONTENTS

INTRODUCTION………………………………………………………………………….....3

INDIAN LEGAL SYSTEM:

A GLIMPSE INTO ITS PAST……………………………………………………………5
(PRE-COLONIAL INDIA)

INDIAN LEGAL SYSTEM:

DURING THE BRITISH RULE………………………………………………………….7
(COLONIAL INDIA)

INDIAN LEGAL SYSTEM:

POST-INDEPENDENCE………………………………………………………………14
(NON-COLONIAL INDIA)

CONCLUSION………………………………………………………………………16

2
 INTRODUCTION

The Indian legal system as we know it to be today is not something that was developed with a
fixed plan and goal by certain people, but is a collective product of the various systems and
subsequent changes over a period of time. The time period that was evidently most prominent
with respect to changes in the Indian legal system was during the British-ruled colonial India.
Law in India has evolved through processes of change since times of religious instruction to the
present constitutional and legal system, with the much needed inclusion of secular legal systems
and the common law. The manner in which the legal system has ‘developed’, or just changed for
that matter, is owed to the British ruling of the nation, and consequently the colonial system
which allowed for such processes to take place.
The different stages of evolution of judicial system in India is categorized as that during the
Vedic, Islamic, British period and post-independence. Though the order of events is such, it is
widely known how drastically and prominently the British rule has changed the face of legal
system in India in the years afterwards. The present day legal system in India began to take shape
by various ‘modifications’, with the control of the British in India during the 18th century. The
British Empire continued until 1947, creating a system that would be similar to the British
system and relevant to the outside world which, in that sense, can be considered as an advantage
and as development. The very nature of the Indian Law today is similar to western system and
evidently influenced, directly or indirectly, by the western system. Indian law, through its
processes of change and modification over the course of time, has reached a stage where the
system can be considered to be a well-established, ideally proper and organized procedural
structure. Such a system in place today can be said to signify the collective result of the efforts,
risk, experience, careful and necessary planning and persistent labor of many people all the way
through different generations.
Through this project, I will attempt to research the aspects of Indian Law during the British-ruled
India, and how such changes during that time period has affected the course of the legal system
in India throughout the years that followed as well. I have chosen a relatively broader and
somewhat vast topic to research, not to get a deeper understanding of every aspect within, but an
overall understanding of the situations and changes that led to the creation of the judicial system
of the nation we study today. I will also attempt to comprehend and answer the question of
whether such changes can be called as ‘developments’ and whether the term ‘modernity’ does

3
justice in this context. It will be pondered upon whether India would have taken a similar course
of action in developing its legal system, had situations been different with regard to the British
ruling the nation; if the British had not changed the legal system, or if they had not ruled India in
the first place, how would the legal system have been today?

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 INDIAN LEGAL SYSTEM: A GLIMPSE INTO ITS PAST (PRE-COLONIAL INDIA)

Before the colonial state of India ruled by the British, the nation’s legal system had very ancient
and unique methodology and ideology that was widely known among the people. For several
millennia, India’s social and religious structures have endured conditions and inevitable social
phenomena such as famines, religious pursuits, political mayhems and many other catastrophes1.
Countries other than India do not usually have national identities of old, lengthy and vibrant
history. Pre-colonial India was regarded as having a diverse but fragmented cultural, religious as
well as political structure, wherein there lacked a certain monolithic Hindu, Christian or Muslim
authorities. Many castes, tribes, cults, and family groupings tended to defy religious lines and
political lines, resulting in a heterogeneous population that could possibly possess a fixed
concept and belief of authority but what was absent was a necessary notion of legality. Most of
the law at that point of time existed as customary, and adjudication mainly within segregated
communities, which unfortunately led to a common assumption and conclusion by outsiders that
pre-colonial India as a nation lacked law overall2.
Before the period of colonial India, Vedic ages and a civil law system were in place,
approximately during the period of Bronze Age and Indus Valley civilization3. The first major
civilization in India that thrived around 2500 BC in the Indus river valley continued for a
millennium, and is known as Harappan culture. It is estimated to have been the collective result
of thousands of years of settlement. Law as a matter of religious instructions and philosophical
discourse has an eminent history in India4. With sources such as the Upanishads, Vedas, and
other religious texts, the system was enriched by practitioners from different Hindu philosophical
schools and later by Jains and Buddhists5.
Law in ancient India related to “Dharma” in the broader sense. The Vedas, which were regarded
as divine revelation, were known as the supreme authoritative source for all the codes which
consisted of what was then understood as law; ‘Dharma’. Traditional records had governed and
effectively molded the life and evolution of the Hindu community over centuries. These records
1
A Guide to India’s Legal Research and Legal System - GlobaLex, ,
http://www.nyulawglobal.org/globalex/India_Legal_Research.html#_2._Legal_System (last visited Oct 19, 2015).
2
Varsha Chitnis & Danaya Wright, The Legacy of Colonialism: Law and Women's Rights in India, 64 Wash. & Lee
L. Rev. 1315 (2007), available at http://scholarship.law.ufl.edu/facultypub/174
3
NCERT, HISTORICAL EVOLUTION OF THE INDIAN LEGAL SYSTEM CLASS XI.
4
A Guide to India’s Legal Research and Legal System - GlobaLex, supra note 1.
5
Brief History of law in India « The Bar Council of India, , http://www.barcouncilofindia.org/about/about-the-legal-
profession/legal-education-in-the-united-kingdom/ (last visited Oct 19, 2015).

5
supposedly have their originating source in the holy Rigveda6. Ancient India represents a unique,
distinct tradition of law, which possessed a traditionally independent school of legal theory and
practice, origins or sources of which during this era consist of ‘Smriti, Sruti and acharas i.e.
customs’. The main intention of the law in the Vedic period was to preserve and follow
"dharma"7 which means righteousness and duty8, comprising of both legal duties and religious
duties. It not only consists of laws and court procedures, but also entails a wide range of human
activities, including ritual purification, personal hygiene rules, and ways of dressing. ‘Dharma’
provided the Hindu community with the necessary principal guidance by which one would
ideally lead his life. Justice in ancient India was overseen according to the guidelines of civil and
criminal law described in the Manusmriti9. Notable features of the Vedic judiciary system
include the highest court being King’s court, advised by learned people like ‘Learned Brahmins,
ministers, the Chief Justice etc.., followed by court of Chief Justice, Naman was considered the
fountain of justice that has to act as the lord of Dharma with responsibilities, absence of lawyers10
, two or more judges in a bench was always preferred as ideal to administer justice rather than a
single individual judge taking responsibility as sole administrator of justice11.

Secular law in India varied significantly in different regions and under different rulers. Court
systems specifically for civil and criminal matters were the necessary features of most of the
ruling dynasties of ancient India. Excellent secular court systems existed under the Mauryas from
321 BCE to 185 BCE and the Mughals from 16th century to 19th century, giving way for
emergence of the current common law system12.

6
A Guide to India’s Legal Research and Legal System - GlobaLex, supra note 1.
7
dharma Facts, information, pictures | Encyclopedia.com articles about dharma, ,
http://www.encyclopedia.com/topic/dharma.aspx#1 (last visited Oct 19, 2015).
8
NCERT, supra note 3.
9
A Guide to India’s Legal Research and Legal System - GlobaLex, supra note 1.
10
P.V. Kane, History of Dharmasastra, Vol. III, Chap. XI, 288-289
11
K.P. Jayaswal, Hindu Polity, 313.
12
Brief History of law in India « The Bar Council of India, supra note 5.

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 INDIAN LEGAL SYSTEM: DURING THE BRITISH RULE (COLONIAL INDIA)

The British colonial state in India was continuously forced to deal with the forms of law and
governance suitable for Indian society. This problem of the necessary, likely, and desirable
relationship between colonial law and Indian social life produced an excess of policies and hence
problems with confusion. It also created a new political significance for certain issues
determined as social, mainly religion, women, family, property, economic production and
exchange. This later subsequently created scope and models for the modern day law that we see
in India today.
Institutionally, since the initial stages of British trade and residence in the Indian ports around
seventeenth century until the 1860s, disputes in areas of British residence, which were later
conquered, were adjudicated by a dual system of courts.13
The ideology and methodology of the British government that emerged and resulted in the
colonial state defined and engaged with aspects of Indian social life, particularly related to
religion, women, family, and to property and economic production and exchange during the long
century between the 1810s and the 1940s made the most impact in the legal system14. The
correlation between nineteenth century England and colonial India was intricate in terms of
assigning the different constituencies that had an interest in economic and moral development of
the colonies. In 1858, when India became under the control of the English Monarchy, its future
had become ineradicably linked with that of England's. Regardless, India's own unique history
and culture made it inevitable that most of the reforms that the colonialists planned to undertake
worked out differently than what they had predicted.15
The British rule in India introduced and developed the Common Law legal system, which is now
the basis for the present Indian judicial framework. In the early eighteenth century, in 1726, the
Crown, King George I, through a series of Charters, introduced a judicial system that functioned
under their authority in the three presidency towns; Bombay, Madras and Calcutta, i.e. the
largest, most important towns in India under the British rule. The courts were termed ‘Admiralty
Courts’ or ‘Mayor’s Courts’ in Bombay and Madras, ‘Collector’s Court’ in Calcutta. The

13
RACHEL STURMAN, THE GOVERNMENT OF SOCIAL LIFE IN COLONIAL INDIA: LIBERALISM, RELIGIOUS LAW, AND WOMEN’S RIGHTS
(Cambridge University Press).
14
Id.
15
Varsha Chitnis & Danaya Wright, The Legacy of Colonialism: Law and Women's Rights in India, 64 Wash. &
Lee L. Rev. 1315 (2007), available at http://scholarship.law.ufl.edu/facultypub/174

7
Judicial functions of the company increased significantly after its victory in Battle of Plassey. By
the year 1772, the company’s courts expanded to outside these three major cities during the
process of which, it gradually replaced the existing Mughal legal system.16 These judicial
systems were framed independently by the Governor and the Council of the towns, which had
the authority to decide both civil matters and criminal matters. Yet, the towns functioned
independently, in addition there was a lack of consistency and understanding due to
dissimilarities in its functioning. Moreover, the courts’ authority was not derived directly from
the Crown, but instead derived it from the East India Company. This also added to ironically
making the system ‘unsystematic’.17
After 1857, following the First War of Independence, the control over the company territories in
India passed on to the British Crown. Being a part of the empire created way for the next
significant change in the Indian legal system. Establishment of Supreme Courts would replace
the existing ‘Mayoral Courts’.18 These courts after being replaced, were converted to the first
High Courts after process of letters of patents which were authorized by the Indian High Courts
Act of 1862 passed by the British parliament. This restructured the then prevalent judicial system
in the nation by abolishing the Supreme Courts at Fort William, Bombay, and Madras, along
with the then existing Sadar Adalats of the Presidency Towns. The High Courts were established
with ‘civil, criminal, admiralty, vice-admiralty, testimony, intestate, and matrimonial
jurisdiction, as well as original and appellate jurisdiction.’19
The Privy Council acted as the highest court of appeal during the Raj. Law lords of the House of
Lords adjudicated the cases before the council. The state’s proceedings were such so that it sued
and was sued in the name of the ‘British sovereign in her capacity as Empress of India.’ Privy
Council played a role that had a great unifying power and acted as the instrument and epitome of
the rule of law. Privy Council’s Judicial Committee was provided a ‘Statutory Permanent
Committee’ of legal experts in 1833 that would hear appeals from the British Colonies by an Act
passed by the British Parliament. The Act of 1833 hence converted the Privy Council into a great
imperial court of authority that was ‘unimpeachable’.20

16
Brief History of law in India « The Bar Council of India, supra note 5.
17
Chief Justice of India K.G Balakrishnan Address at International Conference of the Presidents of the Supreme
Courts of the World (Mar 23-24, 2008) Abu Dhabi, An Overview of the Indian Justice Delivery Mechanism
18
Brief History of law in India « The Bar Council of India, supra note 5.
19
A Guide to India’s Legal Research and Legal System - GlobaLex, supra note 1.
20
Brief History of law in India « The Bar Council of India, supra note 5

8
During the change from Mughal legal system, “vakils”, which were the advocates under the
system, also followed suit, although they mainly continued their earlier role of representing
clients. The new opportunities presented by Supreme Courts were barred to Indian practitioners
as right of audience was ‘limited to members of English, Irish and professional Scottish bodies.’
Subsequent rules and statutes included in the ‘Legal Practitioners Act of 1846’ allowed for the
profession irrespective of nationality or religion.
The colonial state thus suggested itself as a ‘secular agency’, and yet it used religious values and
governed through religious norms in different ways. For a few scholars, this poses the possibility
of the non-secular character of the state, and consequently several have critiqued or criticized the
modernization as secularization planned in the colonial model.21
Coding of law also began properly with the formation of the first Law Commission. Codification
of laws made them uniform throughout the nation and adopted some ‘legal unity’ in the
fundamental laws, as they apply uniformly throughout the nation.22 Under the stewardship of its
chairman, Thomas Babington Macaulay, the Indian Penal Code was drafted, enacted and brought
into force by 1862.23 This model piece of legislation was reproduced in many of the other British
colonies and even today, forms significant portion of the laws of countries like Singapore,
Malaysia, and Sri Lanka. To cope with and address the constantly changing needs of society,
these legislations underwent many amendments. This code is the fundamental administering
statute for determination of criminal risk for offenses mentioned in it, and to furthermore declare
exemptions to the inquiries of criminal liabilities for offenses covered under special or local
laws. This legislation has been used over decades, and has been amended very few times.24 The
Code of Criminal Procedure was also written by the same commission. Host of other statutes and
codes like Contract Act 1872 and Evidence Act 1872, the latter of which is based on the work of
Sir James Fitzjames Stephen, was a historical measure that joined the rules of evidence which
were previously based on the traditional legal systems of an excess of social groups existing in
India. These also differed, at times, subject to a person’s religious faith and/or social standing.
This differentiation was eradicated and the judicial system had a wide-ranging guide for
21
STURMAN, supra note 13.
22
Chief Justice of India K.G Balakrishnan Address at International Conference of the Presidents of the Supreme
Courts of the World (Mar 23-24, 2008) Abu Dhabi, An Overview of the Indian Justice Delivery Mechanism supra
note 6
23
Brief History of law in India « The Bar Council of India, supra note 5.
24
Chief Justice of India K.G Balakrishnan Address at International Conference of the Presidents of the Supreme
Courts of the World (Mar 23-24, 2008) Abu Dhabi, An Overview of the Indian Justice Delivery Mechanism

9
admissibility of evidence in courts, which included subordinate courts, high courts as well as the
Supreme Court. The main essence of such a system of coding was to protect fundamental laws
that had been recognized by the existing Constitution and it sought to maintain the same even
when given a federal structure. Although, to some extent, local variations are permitted to be
made by ‘States’, which are the provincial units of India, the vital unity of the nation in the
matter of basic laws is preserved, including ‘penal and criminal procedure laws, marriage and
divorce, wills, adoption, intestacy, succession, insolvency, civil procedure, evidence, etc..’
India is filled with diverse religions, with each having its own personal laws that govern
marriage, adoption, succession. The British managed to maintain a policy of non-interference
with custom and personal laws, and it was hence decided that Hindus were to be governed by
Hindu Law and Muslims, by Muslim laws. The British administration attempted to provide a
framework for these laws also, by enacting detailed legislations governing various religions. Few
examples are the ‘Indian Christian Marriage Act, 1872, Parsi Marriage and Divorce Act, 1936,
Dissolution of Muslim Marriage Act, 1939, Hindu Marriage Act, 1955’. The term ‘Hindu’ had
been viewed flexibly to include Sikhs, Jains and Buddhists. The development of personal laws is
largely influenced by customs and manners of communities. As these customs change with time
and development of society, the legislations have been amended from time to time. Many ancient
practices have been recognized, while others done away with, in line with public policy and
societal moral values. The legislations contain mechanisms for the protection of divorced
spouses, education for minor children, maintenance etc. In respect of Muslim Law, marriages are
legalized by the process enshrined in the 3 dictates of Mohammedan Law. However, no specific
law exists for adoption for Muslims, Christians and Parsis, and they are covered by the general
law governing guardians and wards.25
The British wanted to bring Western enlightenment to the native Indian family by abolishing
child marriages, sati, and the prohibition of the remarriage of widows, purdah, and similar
patriarchal customs that oppressed women.26

25
Chief Justice of India K.G Balakrishnan Address at International Conference of the Presidents of the Supreme
Courts of the World (Mar 23-24, 2008) Abu Dhabi, An Overview of the Indian Justice Delivery Mechanism supra
note 6
.
26
Varsha Chitnis & Danaya Wright, The Legacy of Colonialism: Law and Women's Rights in India, 64 Wash. &
Lee L. Rev. 1315 (2007), available at http://scholarship.law.ufl.edu/facultypub/174

10
Abortion reform in England and also India occurred in the late 1960s and early 1970s, but
because of the dissimilarities in social context between the two nations, the comparison of the
reforms is notable. In England, abortion had been regulated heavily and restricted within and
because of a predominantly Christian ideology that stressed upon the sanctity of life and the
belief that life begins at conception. In India, social battles between pro-abortion and anti-
abortion advocates had never reached the intense level as found in England and America.
Because of this, when India faced weighty population pressures, the decision to legalize
abortions was practically unopposed. In India, the abortion debate did not bother to consider or
weigh women's rights against fetal protections, but instead presented abortion as social policy
and population control. In India, though these population pressures created a favorable
environment for loosening abortion restrictions, the Indian Parliament adopted the same law
which was adopted four years earlier in England. It is not surprising that the law had proven to
be unable to deal with the unusual situation in India of an embedded patriarchy that favoured
male over female children. As an expected consequence, the liberal abortion policies had
resulted in the unfortunate widespread female feticide. Without any perception of abortion as a
component of women's autonomy and control over one’s own reproductive functions, abortion in
India had become an instrument that reproduces colonialism and patriarchy. Before the twentieth
century, abortions in England were largely regulated through laws on murder and infanticide,
especially if and when the mother had expired as a result of the procedure. During and after a
highly publicized case involving the rape of a 14 year old girl in 1938, therapeutic abortions
were accepted, for cases threatening the life of the mother, as well as her mental health. The
medical profession soon became the guardians for determination of the indications for medical
abortion, and they caused the slow erosion of legal restrictions by finding that a number of
physical and mental effects were genuine medical grounds to perform an abortion. Abortion in
India had not been regulated during the pre-colonial period. But in the nineteenth century,
induced abortion became illegal in India, unless "medically indicated to save the life of a
pregnant woman," as governed by the Indian Penal Code and the Code for Criminal Procedure.
Persons who performed the miscarriage with the intent to terminate the pregnancy and without a
view to save the life of the pregnant woman was liable for punishment, including the mother
herself. However, as in England, illegal abortions were largely conducted, having an adverse
effect on maternal mortality.27

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The ironic solution to the problem of ‘sati, the child-widow, illegitimacy, and infanticide’ was to
enforce the English law of aristocratic inheritance onto the Indian families, although most
aristocratic English families had been renegotiating for centuries the effects of the common law
of inheritance through strict settlements, trusts, and other devices. Colonial authorities, native
elites, and British feminists were involved in a struggle over the power to outline an authentic
Indian tradition and culture as well as the proper parameters of gender within both England and
India. The Contagious Diseases Acts, age of consent laws, widow reversion, sati, and abortion, to
name a few, are just some of the goals of law reform that pitted these groups against each other
in the struggle while attempting to define the suitable contours of the private sphere. As the
British spent much time talking about their civilizing mission, they did very little in the end, and
usually what they did accomplish was to undo some of the structures and expectations that were
imposed on the Indian family in the first place by them. It is notable that while British attempted
to right the wrongs of Indian women, they remained a group that never consulted and never
viewed as able to construct its own identity.28
With the establishment of the Government of India Act, 1935, provincial autonomy was
established, which introduced responsibility at the provincial level, seeking a federation of the
Union of British Indian Provinces with the rulers of Estate. As a federal system is dependent
largely upon the just and competent administration of law between governments themselves, the
Act allowed for the Federal Court to be established, as forerunner of the Supreme Court of
India. As the second highest court in the judicial hierarchy in India, the Federal Court was the
first Constitutional Court and the first all-India Court of extensive jurisdiction, having Original
Jurisdiction in matters where dispute was present between the provinces or federal States. It was
also the Appellate Court for the judgments, decrees, or final orders of the High Courts. The
Federal Court of India had original, appellate and advisory jurisdiction. The doctrine of
precedent in India also had its origins in Federal Court as the law declared by the Federal Court
and Privy Council has been given binding effect on all the courts in British India.

27
Varsha Chitnis & Danaya Wright, The Legacy of Colonialism: Law and Women's Rights in India, 64 Wash. &
Lee L. Rev. 1315 (2007), available at http://scholarship.law.ufl.edu/facultypub/174
28
Varsha Chitnis & Danaya Wright, The Legacy of Colonialism: Law and Women's Rights in India, 64 Wash. &
Lee L. Rev. 1315 (2007), available at http://scholarship.law.ufl.edu/facultypub/174

12
 INDIAN LEGAL SYSTEM: POST INDEPENDENCE (NON-COLONIAL INDIA)

At the beginning of independence in India, the parliament of a new India was the hearth where a
document that would guide the young nation was being made. It would eventually end up on the
keen legal mind of B. R. Ambedkar to articulate a constitution for the independent nation. The
Indian Bar had a significant role in the Independence movement; the most prominent leaders of
the movement were lawyers is a statement in itself. The fresh nation found its first leader in
Jawaharlal Nehru, and a paternal figure in M. K. Gandhi, both being exemplary lawyers. Maybe
it is the resultant understanding of law and its relation to society that stimulated the founding
fathers to devote themselves to form a Constitution of unparalleled magnitude in both scope and
length.29

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The Indian Constitution is essentially federal in form and what is noticeable is the traditional
characteristics of a federal system, specifically Supremacy of the Constitution, division of power
between the Union and State, and the existence of an independent judiciary in the Indian
Constitution. The three organs of the State; State, Legislature and Judiciary are to function
within their own spheres defined under the Constitution. The doctrine of Separation of
Powers has ideally been implicitly recognized by the Indian Constitution. The basic structure of
the Constitution is unchangeable and only amendments to the Constitution are permitted, as long
as they do not affect the basic structure or deprive it of its essential character. The Constitution
of India recognizes certain basic fundamental rights for every citizen of India, such as the Right
to Equality, the Right to Freedom, the Right against exploitation, and the Right to Freedom of
Religion, Cultural and Educational rights, and the Right to Constitutional Remedies. Any
infringement of fundamental rights can be challenged by any citizen of India in the court of law.
The Constitution of India also sets some fundamental duties on every citizen in India.30 The
Constitution clearly and through judicial interpretation, strives to empower the weaker members
of the society.
The various implementations that were put in place as a result of the British rule have led to
effect the nation, especially post-independence. The abortion reforms, for example, show just
how greatly the colonial state has influenced post-colonial India and the difficulties inherent
once again using women's bodies to negotiate political ends. Abortion reform in England that
was mainly based on rights, is not without controversy. Yet, the reform in India, which was
socialist and nationalist at heart, lead to denial of women's autonomy and women's interests
being integrated in the greater goal of an idea of a modern India that somehow retains its
traditional character.31
India has an organic law as result of the common law system. Through judicial pronouncements
and legislative action, this has been adjusted for Indian conditions. The shift of Indian legal
system towards a social justice paradigm, though undertaken independently, can be understood
to reflect the changes in other territories with common law system.

29
Brief History of law in India « The Bar Council of India, supra note 5.
30
A Guide to India’s Legal Research and Legal System - GlobaLex, supra note 1.
31
Varsha Chitnis & Danaya Wright, The Legacy of Colonialism: Law and Women's Rights in India, 64 Wash. &
Lee L. Rev. 1315 (2007), available at http://scholarship.law.ufl.edu/facultypub/174.

14
From a pretense of the colonial masters, the Indian legal system has progressed as an essential
element of the world’s largest democracy and a serious front in the fight to secure constitutional
rights for every citizen.

CONCLUSION

It is clearly evident how drastically and prominently the British rule has changed the face of legal
system in India in the years afterwards. It created a system that would be more relevant with the
British system and outside world, which can be seen as a development.
Even today, most of the judges and Indian lawmakers are trained in England, within a legal
model that lacks the flexibility required to address the ‘pluralist traditions of modern India’ nor
with the ‘colonial legacy’ that remains rooted in the Indian state and mindset. Because they are
dependent on narrow definitions of legal principles and procedures, gathered from their
ultimately secular past, their constricted interpretations of evidence and civil procedure lead to

15
disparity in treatment for different women ‘victimized by Indian men, Indian culture, and a
hegemonic legal system that fails to recognize their rights.’ Whatever rights do exist within the
secular Indian state are not largely exercised by Indian women due to the religious and cultural
norms that were historically constructed and imposed.32
Such an example brings into question the doubt of whether the nation would have even adopted
such a system with proper courts, procedures, codes, etc. without external interference. Whether
the system present before British rule would have still been in place? If so, how successful would
it be, considering the situation present in the world today?
I believe that with the interconnecting world today, a possibility would have been that India
would have eventually brought in a system that meets the requirements of other countries, as
well as the Indian beliefs and ideology. Without such a system, law in India would have been
impractical and at the least, difficult to proceed with.
The question of whether such changes can be called as ‘developments’ and whether the term
modernity does justice in this context is something that I found to be subjective and cannot be
answered. Development and modernity are terms that are hard to define without perspective
playing a relevant role. If we are talking in terms of change, modern/western rights and beliefs,
and relevance to the outside world, perhaps yes. But in the mindsets of many Indian citizens and
with respect to the origins and roots of the nation, it may not have been so.

32
Varsha Chitnis & Danaya Wright, The Legacy of Colonialism: Law and Women's Rights in India, 64 Wash. &
Lee L. Rev. 1315 (2007), available at http://scholarship.law.ufl.edu/facultypub/174

16