THE ROLE OF INDIAN VOLKSGEIST IN ITS LEGAL EDUCATION AND PRACTICE BY DR. BIRENDRA KUMAR GUPTA & SURAJ AMIT
THE ROLE OF INDIAN VOLKSGEIST IN ITS LEGAL EDUCATION AND
PRACTICE
Authored By - Dr. Birendra Kumar Gupta,
Associate Professor,
Faculty Of Law,
Patna University, Patna
Co-Author - Suraj Amit,
Research Scholar
University Department Of Law
Patna University, Patna
ABSTRACT
This study is based on NATIONAL
EDUCATION POLICY 2020 with reference to Legal Education in India and its
Practice. Through NEP 2020 Indian government wants to spread Legal Education
and its Practice in global form, also curricula for legal studies must reflect
socio-cultural contexts along with the global form in an evidence-based manner,
that is, the history of legal thinking, principles of justice, and practice of
jurisprudence. So this purposes it is needed to study of the Indian Volksgeist of Legal Education and practice. The core
of Volksgeist was that a legal system of a nation is mainly influenced by the
historical culture and traditions of the people and its growth was located in
their acceptance. Through this article we try to trace principles which govern
the ancient legal education and practice and their prevalent customs. We also
make effort to trace Indian Historical Jurisprudence in Medieval period after
as well as in British Period in order to trace the presence of facts and the in
the legal system in India after its independence. In the study of NEP 2020 this
article had made effort to trace the India ancient volksgeist in the current
legal system or legal system of after its independence. Through this article
try to know what kind of practice and legal education governed that phase,
which principles were relinquished and which principles are still carrying on.
This study is based on the researches which may highlight completeness of
ancient Indian legal system and its reflection well noticed in present system.
KEYWORDS: VOLKSGEIST, CORE, NEP2020, JURISPRUDENCE, GLOBLE
Introduction
The topic of this article is clearly talks
about what was the role of Indian Volkgeist in its legal education and
practice. for this kind of research work we need to know all kinds of phases
that they help us to trace the actual fact regarding practice. We study mainly
four phase like ancient period and practice, Medieval period and practice, British
period and practice, Independent India and practice. We will study all four
aspects one by one to know about role of Indian Volksgeist in its legal
education and practice. We will also find through the study of this article
National Education Policy 2020 has made strive to find volksgeist of Indian
legal system.
1.
Ancient Period and Practice
We Start from Ancient Hindu legal
system and it is but natural for Hindus to consider their law as of divine
origin. Hindus consider their law as a revealed law. The
theory is that someone among us, our great rishis, had attained such
spiritual heights that they could be in direct communion with God. At
some such time, Hindu law was revealed to them and through them we got our
divine law. The revealed law come to us in four Vedas. The assumption is
that the later development, the Smritis, the Digests and Commentaries
are nothing but the expositions of the sacred law contained in the Vedas
which are considered to be the source of all knowledge. On that premise
emerges the concept that Hindu law is divine law, and being divine law, it is
sacrosanct, inviolable and immutable. The word sacrosanct implies that Hindu
law is not merely very sacred or holy law but also hallowed law- a law to be
looked at with reverence, the validity of which cannot be questioned. The word
inviolable implies that it is a law which cannot be violated, which cannot be
changed. In short, it is a permanent law. The word immutable signifies that it
is an unchangeable law which is valid for all times to come, it is an eternal
law.[1]
Hindu
Jurisprudence
When we are going to elaborate the
term Hindu Jurisprudence then we should know that Hindu is a religion of human
being and Jurisprudence is secured from latin term “Jurisprudentia”.
Jurisprudential means “knowledge of law”. When we study both terms then we find
that Hindu law means study of Hindu law is known as Hindu Jurisprudence. It is
a sacred law since our sages, rishis used to give the suggestion to our kings.
Kings always in touch of these rishis, Acharyas to about “Dharma”. Dharma was
that time law rules and regulation which is given by Acharyas to the king to
maintain the “Rule of law” in the society. For this our law governed by that
time source of law like Vedas, Smriti, Shrutis, Digest and Commentaries. These
sources are given by the very renounced sage because that time of sage reached
and gain the spiritual height. So that they are able to suggested the people as
well as the kings. We can say that Hindu Jurisprudence was found in Hindu
religion and custom.[2]
This kind of law is start from when the new born baby come on the earth and
during his/her life period till death all the rules help to live the life.
These kinds of law help us how to leave in society, we can say that it is Rule[3] of
law to govern our life. It starts from Morality Education and many more.
ancient Hindu legal system based on Hindu Jurisprudence.
Administration of Justice in Ancient
Period
Administration of justice was one of
the most challenging issue of kings of that time period. If we talk about
Yudhistira in epic of Mahabharata he went to Bhishmapitamah after the war of
Mahabharata to know about how to govern states and how to implement Rule of Law
and Dharma among the people of his own state. After all these things we have to
know about king’s strategy to regulate his kingdom. First of all it was duty to
detect all the disputes arising among the people and when they go to king for
justice which kind of strategies are followed by the king of that time. They
need to appoint expert, jurist and some sometime self. People go to authority
for the remedy and authority treats them as directed by the king. If matter is
not fitted in any situation then they go through then they go through the sages
view. We can say that it all belongs to the dharma. Dharma is not an individual
thing for all every person ha its own Dharma. Dharma followed by the Smritis,
Shrutis and Digest and also apply presence of mind apply by king. For this king
must have knowledge about the fact and he must be well educated person. As per
need king administrate his function of justice in ancient period. If the
officer of the court also found in guilty and committing offence then they also
punished by the king. For the solution of these kind of dispute king make court
of justice for legal proceedings[4].
Legal proceeding also known as Vyavahara.
Vyavaharaha (Legal Proceeding)
Vyavahara means legal proceeding for
the justice of innocent people. When we look on back of time that time people
are very innocent they don’t think about profit or loss never be jealous to any
other people and when time passes it started happening in the society for the
small matters. Now those days they were starting to cheat and fighting to each other
for the purpose of his ownership, possession, right or wrong, for threat people
for the money and many more matters. This type of matters were went to the
court of justice and king was entitle to decide their dispute we heard se many
stories as for example Akbar Birbal and many more stories for the example of
vyavahara was found in society. Those time people obey Dharma as a rule
voluntary. But when time changes as per situation they were starting telling a
lie with each other, they want to deceive for gain some money and extra
attention on his own work. So there was need a place where justice found for
the sufferers. Some rules had framed for the tool of justice and codification
of law as per demanding situation. Situations means that there were so many
kind of nature of offences like civil or criminal individual or in combine form
so it falls which type of offence this mechanism will be worked. Some where it
is rightly said that offence and punishment were define and arranged topic wise
by the known jurists or authors. Mostly famous Manu codification of law mostly
followed by the kings and that time jurist. Main object of Dharma to protect
the law and that person who suffering from the conduct of another people[5].
Vyavaharapada
When we talk about Vyavaharapada (topic
of litigation) then there are so many kind of disputes which were come into
existence in those days. Its classified by Manu’s eighteen title of law, out of
thirteen come under the nature of civil disputes and next five come under
crime. These branches of law were called Vyavaharapada. In the ancient period
all disputes and law had been under eighteen topic of Vyavahara[6]
are: Runadana means payment of debts, Nikshepa means deposits, Aswamy Vikraya mens sale without ownership,
Sambhuya Samuthana means partnership, Dattasyanapakarma means resumption of
gift, Vetanadana means payment of money for work, Samvidvyatikrama means
violation of convention of guilds and corporations, Krayavikrayanusaya means
purchase and sale, Swamipala Vivada means dispute between servant and master,
sima vivada means boundary dispute vakparushya means defamation, Dandaparushya
means Assault, Steya means theft, Sahasa means offence by violation,
Strisangrahana means adultery, Stripum dharma means duties of wife and husband,
vibhaga means partition, Dyutasamahvaya means gambling and[7]
betting.
Niyogi (Representative)
Niyogi means representative[8] of
that person who suffered from any people and place where people went and got
face some illegal act, misbehave from any other person or administrative
officer also. Its kind of person who advocate that person who help and speak on
the behalf of that person who not able to represent his problem in front of the
court of justice and that time person not permitted to meat court of justice. So
the people went to that person who represent matters in front of the court of
justice. On the above statement its clear that any plaintiff or defendant who
want to justice and want to present his matter then he/she must have had a representative
who represent their matters in front of the court of justice. Order 3 of code
of civil procedure give the permission to person who depute his /her representative.
That time who litigate the matter in front of the court of justice. The person
who competent and eligible to represent the matters so appointment was very
necessary that time.
2. Medieval Period and Practice.
After the end of ancient phase and
the beginning of the medieval period and starting the downfall of Hindu period.
All the Hindu kings were defeated by foreign attack. Due to lackness of some
trust and many other factors which was related to political military social and
economic factors were cause of the down fall of Hindu Legal System. This period
was also faced some struggles for supremacy. Some states discovered an
atmosphere nobody can believe his words that’s why there were so many common
enemy got profit state need to meet and make a list of common enemy for
preventing their attack. Due to lacking of a great leadership for controlling
the political and military powers. That time Indian was not able to accept and
adapt the present situation which was created by that time administration. All
person were suffering from individual or mutual problems. Hindu kingdom also
faced some problem and they want to separate from each other on the basis of
caste or Religion matter it was also biggest factor. When we talk about the
judicial procedure of Muslim period[9] it
followed systematic procedure court system. We can say that it used to mainly
governed by two laws first one FIQH-E-FIROZ– SAHIHI and second
FATWA-I-ALAMGIRI. That time status of the court was sort out by same political
bifurcation of the kingdom. If they had consider civil cases then the plaintiff
had duly authorized agent and required to file a plaint for his/her claim in
front of the court of law which falls on appropriate jurisdiction in that
matter. The defendant whose name mention in the plaint was called which by the
court to give his/her acceptance or deny the claim which was duly framed by the
plaintiff. In the case of deny the court was entitled to frame the issue and
then plaintiff was required to produce evidence for supporting his/her claims.
The court give a chance to defendant also to prove his/her matter with the help
of his/her witness. They were cross- examined by the court after concluding
his/her judgement the officer of the court give judgement in open court. If we
talk about the criminal cases then a complaint was submitted in front of the
court either representative or personally for each and every criminal court had
a public prosecutor also known as MOHTASIB. Mohatasib do prosecution against
the accused in front of the court. The court was authorized to call the accused
at once and to begin hearing of the case. The judgement was given in open court
but sometime the court insisted on hearing the complainants evidence when
calling the accused person. There are three kinds of evidence and its was
followed by Hanafi law. First one was TAWATUR which means give full
confirmation Second was IHAD means description of a single one, third was IQRAR
means admission and confession both on the same time. Tawatur evidence was more
referred by the court of justice. The faith in the god to the god faither they
thought that they never rejected as dishonestly unless proved so.
Appointment
In the Muslim period the chief
justice (QAZI-UL-QUZAR) and judicial officer of higher rank were appointed by
the monarch. It was also seen that time chief justice and other judges were
directly appointed from the well practicing lawyers.
Institution of Lawyers
When the matters were presented
before the court by the legal experts. They were known as VAKIL. So we can say
that the legal profession be very strong during the mediaeval period. That time
there was no any kind of institution of lawyers like the “Bar Association” as
it present in current era that the lawyers played a vital role for the
administration of justice. Two Muslim codes like Fiqh-e-firoz Shahi and
Fatwa-e-Alamgiri, clearly speak about the work of Vakil. At the time of Mu hammed Tughlaq as a judge Ibn Batuta was
working and it was also mention in his book “Mawardi” shown in the legal
profession, said that knowledge regarding law was compulsory both who entitled
to act as a Qazi and for the legal practice. Some foreigner people were
misguide that there was no any legal profession happening in Mughal period[10] but
we could seen that here all judicial act done by the Qazi and had legal
education also because for being a Qazi they must had legal knowledge also we
also know that to defend civil suits against the state in the time of Shah
Jahan it was first time happened govt
advocate appointed when we talk Aurangzeb’s time period full time practicing
lawyer were appointed in every district they also known as Vakil-e-sarkar or
Vakil-e-shara. These Vakil were appointed by chief justice (Qazi-ul-quzat) and
some time by the chief Qazi. Some Vakil was recruit to help the poor litigious
giving them free legal aid. We should also know that vakil had a right of
audience in the court, Vakil should maintain a standard of legal education and
advocacy.
3.
British Period and Practice.
Now we discussed about legal practice
in British period. When we talk about history of legal profession in British period
we must know about history of legal profession in British period in India then
we can see that British laws and formal simple legal frame work in the18th
century. A number of legislation deals with different part of political,
economic and social life a contract law, Indian penal laws, evidence law, trust
law, transfer of property law, specific relief law, tort law etc. these all
somewhere based on English Common low were introduced in India by the British
administrating body and legal institution like English courts. English courts
were also established for matter settlement in that place where native court
structure. The origination of the professional legal practitioner in India was
a resultant out come of these factors. There were two categories of court like
king court and company court. The arrival of East India company on the Indian
land in 1600 give rise to growth of Judicial System in the country starting
from two categories of court structure developed in India which were popularly
referred to as the king’s court and company courts.
King’s court Mayor’s court and the
Charter Act of 1726.
In 1615 the East India Company placed
its factories in Surat after taking Royal permission from the Jahangir had that
time Mughal Emperor resultant it open their factories in the three towns that
was namely Madras, Calcutta and Bombay. These town was also known as presidency
town and these town’s officer was the officer of the company framed their
living flats and the factory storage. These officers were always unhappy to be
regulate by the laws and legal organization of the spot land and they wanted to
initiate an individual court system in these town’s factory which would be
regulated by the English people and based on legal system. For shifting up of
Mayor’s Court and court of Terminer King George had issued Charter Act 1726. These
court were classified as court of record and English Language was classified as
the official language of the of the court. The Charter Act of 1726 did not tell
about any laws regarding to legal practitioners or individuals who could
practice in these kind of court. After this a new Charter Act was framed by
King George 2 in 1755. It continued the prior court system in these three
settlements. During this time period no any specific laws regarding legal
practitioners were running in these of courts and people that time usually
unaware in law of the company practiced in these type court which was own
knowledge point of view[11].
Supreme Court and the Regulating Act,
1773
The enactment of Regulating, Act 1773
there were major changes introduced in the rule of the three factories town its
happened after the Battle of Plassey in 1757 and Battle of Buxar in 1764. There
were many changes come into existence in judicial system by exchanging the
Mayor’s court for the stable of the Supreme court in the presidency town of
Culcutta.
For the growth of legal profession
and professional also Act of 1773 was very important in India become the
provision for initial time presume the functioning the lawyers and govern their
capacity to appear and practice in the courts. Under clause 2 of the Supreme
Court Act authorize to frame rules and apply power regarding to sanction enhance
and nomination of advocates. The court had special power to discard any
Advocate on a genuine ground. Here no other person except Advocate or Attorney
was permitted to give his presence and practice in the court on behalf of the
petitioner. This practice was functioning in England, the known Attorney were
permitted the implied authority to appear and do practice on behalf of the
petitioner, whereas the Vakil were able to appear and make practice in front of
the court in India. English solicitors and Attorneys were prefer to as the Attorneys,
whereas the Irish and English Advocates member in Scotland were known an
Advocate. It is rightly said that by the grace of 1773 Act, the Supreme Court
become unique estate for the members of the Indian and the British Advocates
were decline all rights of present in that kind of court[12].
Some changes were come into effect Madras, Bombay, and Supreme Court these town
were slug with the power to enroll and admit value and law Attorney in these
courts. After all these things there were so many acts and regulations were
come to the welfare of the Advocate point of view written as Company's Courts,
Regulation VII of 1793, Regulation XXVII of 1814, Bengal Regulation XII of
1833, The Legal Practitioners Act, 1846, The Legal Practitioners Act, 1853,
Pleaders, Mukhtars and Revenue Agents Act, 1865, Indian High Courts Act, 1961,
The Legal Practitioners Act, 1979, The Legal Practitioners (Women) Act, 1923,
Legal Practitioners (Fees) Act, 1926, after these Acts and regulations want to
uplift of the demand Indian Bar. Resultant The Indian Bar Council Act, 1926
come and the struggle for reform in the profession and judicial system remain
continue till the end of the British rule in India. Leaders of innovative India
forwarded their activism to bring about structural changes in the whole administration
of justice by demanding for equal treatment for different format of legal
professionals and for establishing a integrated Bar for the whole India.
4.
Independent India and Practice.
After the Independence, there must be
need to reform in the legal profession. It was presumed that lawyers were
helpful to bring about political, social, economically and reformative in
cultural in the recent independent India. All lawyers with their legal
knowledge of legal and constitutional area were deemed to be precious officer
for promoting rule of law in the society in the society and defend the right of
the people. It can be seen that these goals could be achieved by reform in
quality of the legal education so that improvement must reflect in the legal
profession in India origination of Independent Bar Concerning of legal
professionals only norms the rule for admission and enrollment. It was also
necessary to seamless the law regarding to legal practitioners in different
area of the country in one law. We can be see that legal profession under All
India Bar Committee 1951 was established in 1951 under the chairmanship of
Justice S.R Das. It was made commendation in 1953 taking into account the
solicitation of law commission. The essential feature of the statement of object
and reason of the Bill which become an Act. There was need to establishment of
AIBE (All India Bar Council of India) in country as well as having right to
practice in any court in India with a enrollment number. The bifurcation of
seniority of Advocates based on their merit. For the admission of a person as
an advocate they should have common qualifications. In India there should be
create an autonomous Bar Councils for each and every states. For this work the
law commission recommend a committee who prevent the non-law graduates for
their recruitment as an advocate and they should not be permitted to practice
in front of any court of justice[13].
Legal Profession under the Advocates
Act, 1961.-The
Advocates Act. 1961, was enacted to amend the law relating to legal
practitioners in the country. In this Act is an enactment dealing with
qualifications. enrolment, right to practice and discipline of advocates. There
are seven chapters and 60 sections which speaks about the Legal profession and
conduct.
Conclusion and Suggestion
We trace the all periods and we find
the what kind of administration of justice run that time we find in ancient and
medieval period both period have the same fountain of justice like king or
sultan and in the ancient time legal practice and legal education is also their
for the be of fountain of justice. In ancient time there are major role of an
advocate and he known as Representative. In Muslim period they are
called Vakil. During British period there are so many Acts and
Regulations are come in action for the welfare of the Advocates and after the
independence we have The Advocate Act 1961, and still we are study the legal
education and do practice under the guidance of this act. Through NEP 2020
Indian government wants to spread Legal Education and its Practice in global
form, also curricula for legal studies must reflect socio-cultural contexts
along with the global form in an evidence-based manner, that is, the history of
legal thinking, principles of justice, and practice of jurisprudence. So this purposes
it was needed to study of the Indian Volksgeist of Legal Education and
practice.
The Indian volksgeist of Legal system
has contributed a lot to the present Indian Legal System and not surprising to
the world legal system also. In Ancient Hindu Legal System we find the four
pilers of justice or we can say these four pilers of justice were the basis of
justice system at that time as well as in legal practice and education played a
vital role. These four pilers were Mahakavaya, i.e Shruti and Smriti,
Customs, saying of Sages and Reasoning. It is very pleasant
to know that justice was not based on Mahakavaya but other three pilers
also made a significant contribution according to the situations. The role of
the reason sometime found to be super imposed upon all the pilers. The
intention of reasoning is to protect the identification of the group subject to
the condition of human right. It is not a wonder when we find in many American
decisions the sovereignty and integrity in India was given priority to protect
the identity of the country. It is also not very surprising when today we learn
Mischief Rule which is one of the best principles for interpretation or
construction of a legislation. It may be concluded here that by having Mischief
Rule the Ancient Hindu Legal System has contributed a lot to the legal system
to the world societies. Undoubtedly it is we said that “Ubi societas ibi jus”
which means society can be define on the basis of social order and that social
order can be formed by adopting such rules of interpretation. If it is not
there either the group would be distracted or by the process of socialization
it would be achieved so the role of Indian Volksgeist in forming the legal
system in India is based upon the concept of justice as it is required by the
society. It also not very surprising that the Indian culture although the world
culture indicates that it is the specific culture of India but that culture
provides a way of human living. It can be very safely concluded that the
acceptance of the Indian Volksgeist throughout the world in order to form a
democratic society is praise worthy.
[1] Sen Priya Nath “General
Principle of Hindu Jurisprudence” Allahabad Law Agency, p-11
[2] Sen P. N (The general principle of
Hindu Jurisprudence) 1918 P-3.
[3] Koolwal. Dr. Manju., ”Development
in Hindu Law”, University Book House(P.) Ltd.,Jaipur,p1
[4] Jois Justice. M. Rama, “Legal
and Constitutional History of India” (Universal Law Publishing),p489.
[5] Jois Justice. M. Rama, “Legal
and Constitutional History of India”,( Universal Law Publishing),p65.
[6] Jois Justice. M. Rama, “Legal
and Constitutional History of India”,( Universal Law Publishing),p67.
[8] Jois Justice. M. Rama, “Legal
and Constitutional History of India”, ( Universal Law Publishing),p531.
[9] Ahmad M.B., “The Administration of
justice in Mediaeval India”, p176-88.
[10] Kulshrestha’s V.D., “Landmark in Indian Legal and Constitutional
History”, Eastern Book Company, Eleventh Edition, Reprint 2017, p30.
[11] Ghosh. Yashomati., “Legal
Ethics and the Profession of Law”, Lexis Nexis, p60-61.
[12] Ghosh. Yashomati., “Legal
Ethics and the Profession of Law”, Lexis Nexis, p61.
[13] Gupta. S.P., “Professional
Ethics, Accountancy for Lawyers and Bench Bar Relations”, Central law
Agency, 5th Edition, p10-11.