 PREVIOUS YEAR QUESTIONS

 NOTES
 PRACTICE WORKSHEET
 GLOSSARY
 INDEX
PAGES

1. SYLLABUS 03-3
2. UNIT-WISE DEMARCATION OF PYQs 04-05
3. LECTURE PLAN 06-24
4. UNIT 01 NOTES AND WORKSHEET 25-50
5. UNIT 02 NOTES AND WORKSHEET 25-50
6. UNIT 03 NOTES AND WORKSHEET 25-50
7. UNIT 04 NOTES AND WORKSHEET 25-50
8. PREVIOUS YEAR PAPERS 15-25
9. GLOSSARY

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 SYLLABUS
LL.B. (Integrated) Five Years Degree Course (First Year), II
SemesterPaper III History II
UNIT-I LEGAL SYSTEM IN ANCIENT AND MEDIEVAL INDIA (10 Lectures)
i. Legal literature in Ancient India: (I) Vedas, Dharmashastra,
Dharmasutras and Arthashastra (ii) Smritisand Smritikars: Manu,
Yajnavalkya, Narad, Brihaspati, Baudhayan and Katayayan (iii) Traditions
and Customs
ii. Law making and Law-Interpreting Process in ancient India
iii. Legal Traditions in Medieval India: Salient Features of Islamic Criminal Law,

Sources of Islamic Law and Hanafi School of Law

iv. The Law of Succession, Administrative Divisions and Administrative Officers in
Medieval India.
UNIT-II DEVELOPMENT OF BRITISH'LEGAL SYSTEM IN INDIA (10 Lectures)
i. Charters of East India Company: 1600C.E., 1661 C.E. and Charter of 1753 C.E
ii. Settlements: Surat, Madras,Bombay and Calcutta
iii. Courts: Mayor Courts of 1687 & 1726 and Supreme Court of 1774
iv. Main statutes: The Regulating Act,1773, The Settlement Act, 1781 and The Pitts India
Act, 1784
v. Conflicts: Raja Nand Kumar, Patna case and Cossijurrah
(i) Judicial Plans of Warren Hastings of 1772, 1774 and 1780
(ii) Judicial Plan of Lord Cornwallis of 1787,1790 and 1793
(iii) Reform of Lord William Bentinck in abolition of Sati Pratha, Female
Infanticide and human sacrifices
UNIT-III EVOLUTION OF LAW AND LEGAL INSTITUTIONS (10 Lectures)
i. Development of Personal Laws
ii. Development of Law in Presidency Towns
iii. Development of Civil Law in Presidency Town with special reference to Equity, Justice
and Good Conscience
iv. Codification of Laws, Charter of 1833, The First Law Commission, the Charter of 1853,
the Second Law Commission
v. Establishment of High Courts, 1861 C.E.
vi. Appraisal of Privy Council and Features of the Federal Court
vii. Racial Discrimination in British Legal System

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 UNIT-IV CONSTITUTIONAL HISTORY (10 Lectures)
i. Indian Councils Acts of 1861,1892 and 1909
ii. Government of India Act of 1919 and 1935
iii. The Indian Independence Act, 1947
iv. The Making of the Constitution of India

LECTURE PLAN
UNIT- I
LEGAL SYSTEM IN ANCIENT AND MEDIEVAL INDIA

LECTURE TOPIC
LECTURE I Vedas & Dharmashashtra
LECTURE II Dharmasutra & Arthshashtra
LECTURE III Manu , Yajanvalkya & Narad Smriti
LECTURE IV Brihaspati , Baudhyan & Katayayan Smriti
LECTURE V Traditions & Customs , Law Making & Law Interpreting Process
LECTURE VI Salient Features , Sources Of Islamic Law & Hanafi School
LECTURE VII Law Of Succession , Administrative Division And Administrative Officers In
Medieval India

UNIT – II
DEVELOPMENT OF BRITIS H LEGAL SYSTEM IN INDIA
LECTURE TOPIC
LECTURE I Charters Of EICO. 1600 , 1661 , 1753
LECTURE II Settlement Of Surat , Madras , Bombay & Calcutta
LECTURE III Mayor Court Of 1687 & 1726 And Supreme Court 1774
LECTURE IV Regulating Act 1773 , Settlement Act 1781 Pitts India Act 1784
LECTURE V Raja Nand Kumar , Patna Case & Cossijurrah Case
LECTURE VI Judicial Plans Of Warren Hastings Of 1772,1774,1780
LECTURE VII Judicial Plan Of Lord Cornawallis 1787 , 1790 , 1793
LECTURE VIII Reform Of Lord William Bentick In Abolition Of Sati Pratha , Female
Infanticide & Human Sacrifices

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 UNIT – III
EVOLUTION OF LAW AND LEGAL INSTITUTION
LECTURE TOPIC
LECTURE Development Of Personal Law & Law In Presidency
LECTURE Development Of Civil Law In Presidency Town With Special Reference To
Equity Justice And Good Conscience
LECTURE Codification Of Laws , Charter Of 1833 , I Law Commission
LECTURE Charter Of 1853 & II Law Comission
LECTURE Establishment Of High Courts 1861
LECTURE Privy Council And Federal Court
LECTURE Racial Discrimination In British Legal System

UNIT IV
CONSTITUTIONAL HISTORY
LECTURE TOPIC
LECTURE I Indian Council Act 1861
LECTURE II Indian Council Act 1892
LECTURE III Morle Minto Reform 1909
LECTURE IV Govt. Of India Act 1919
LECTURE V Govt Of India Act 1935
LECTURE VI Indian Independence Act 1947
LECTURE VII Making Of Indian Constitution

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 UNIT-WISE DEMARCATION OF PYQs
Unit 1

1. Elaborate the salient features of Islamic Criminal laws. (2017)

2. What kind of punishment provided in Islamic Criminal Law, explain and
discuss some special features of Islamic Criminal Law (2018)
3. Short Questions : Hanafi School of Law (2018)
4. Define the legal literature and tradition, custom of Ancient India (2021)
5. Critically examine the features of Islamic Criminal Law. (2021)
6. Write a brief note on Administrative Division and Administrative Officer in Medieval
India (2021)
7. Write in brief: (2021)
a) Source of Islamic Law. b)
Hanafi School of Law. c)Law making and law
interpreting process d)
Law of Succession

Unit 2
1. Discuss the judicial Reforms of 1772 of Warren Hastings. (2014)
2. Focus on the composition, Jurisdiction and law to be applied in the Mayer’s court.
(2014)
3. Short Questions – Q.1- Charter act 1661 AD Q.2- Pitts India Act 1784 (2015)
4. Discuss the main provisions of charter of 1726 A.D? (2015)
5. Describe the fact of Patna case and critically evaluate its judgment. (2015)
6. Short Questions – Q.1- Charter act 1661 AD Q.2-Lord Cornwallis’s Judicial Plan
(2016)
7. Critically examine the trial of Maharaja Nand kumar case and critically evaluate its
judgment. (2016)
8. Discuss the early administration of justice of Madras Presidency. (2016)
9. Short Questions – Q.1- Charter act 1600 AD Q.2- Pitts India Act 1784(2016)
10. Critically examine the trial of Maharaja Nand kumar case and critically evaluate its
judgment. (2017)
11. Discuss the main provisions of charter of 1726 A.D? (2017)
12. Short Question – Q.1- Charter act 1600 A Q.2- Pitts India Act 1784 (2017)
13. Q.3-Lord Cornwallis’s Judicial Plan 1790 (2017)
14. Critically examine the features of Regulating Act, 1773. (2018)
15.Trial of Raja Nand Kumar (1775) was a ‘Judicial Murder’. Illustrate the statement
while discussing facts, issues and decision of the case. (2018)
16. 2020
17. Q.1- Discuss the main provisions of charter of 1687
& 1726 A.D (Mayor Courts)? 18. (2013, 15, 17)
19. Q2- Trial of Raja Nand Kumar (1775) was a ‘Judicial Murder’. Illustrate the
statement while discussing facts, issues and decision of the case.
20. Q.3- Discuss the judicial Reforms of 1772, of Warren Hastings.
21. Short Question –
22. Q.1-Charter act 1600 .1661, 1753AD
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 23. Q.2-Regulating Act, 1773 & Pitts India Act 1784.
24. Q.3-Lord Cornwallis’s Judicial Plan 1790
25. Q.4-Supreme Court of 1774

Unit 3
2015
1. Discuss the establishment, constitution, and appellate jurisdiction of High Courts in
India.
2. Critically evaluate the racial discrimination in the legal system of British India.

2016
1. Focus on the first Law
Commission in India.
2. Discuss the Development of Civil Law in Presidency towns and Mufassil areasa.

2017
1. Focus on the importance of the recommendations of Second Law Commission.
2. Discuss the composition and Jurisdiction of Federal Court.

2018
1. The Charter of 1833 ensures many reforms in the legislative set-up of India. Explain.
2. During the period of 1726 to 1949, the Privy Council played very important role
in making a unique contribution to the Indian Law. Support this argument by
discussing two important decisions of Privy Council.

2022
1. Discuss the Establishment, Constitution, and appellate jurisdiction of High Courts in
India.
2. Throw the light on Second Law Commission in India and what were their
recommendations?

Unit-4

2014
1. Power of Governor General under the Government of India Act, 1935.
2. Explain briefly the reforms of Montague Chelmsford.
2015

1. Diarchy in the provinces under the government of India act,1919.

2. Powers of Central Legislature under the Government of India Act, 1935.

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 3. Main provisions of the Indian Council Act 1861.

4. Morley Minto reforms(ShortQuestion)

2016

1. EstablishmentofProvincialAutonomyundertheGovernmentofIndiaAct1919.(Shortq
uestion)

2. State the main features of Indian Council act, 1892.

3. Main provisions of the Indian Council Act 1861.

4. Explain briefly there forms of Montague-Chelmsford.

2017
1. Discuss the main provisions of the Indian Independence act, 1947.
2018
1. Indian Council Act, 1909 was a significant improvement in the sphere of
Constitutional reform. Briefly state its important provision.

2019

1. Discuss the powers of the Governor General under the government of India act, 1909.
2. Discuss the powers of Governor General under the Government of India Act, 1935

2022

1. Discuss the main provision of Indian Council Act, 1992 and 1909.
2. Main Provisions of Government of India Act, 1919.
3. Write the features of Indian Independence Act, 1947

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 UNIT I

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 Unit-I

Topic 1 :
Legal literature in Ancient India: (I) Vedas, Dharmashastra, Dharmasutras and
Arthashastra (ii) Smritis and Smritikars: Manu, Yajnavalkya, Narad, Brihaspati,
Baudhayan and Katayayan (iii) Traditions and Customs

Q.1.a. what do you mean by legal literature?

 Written works that focus on legal concepts, principles, and issues.

 Wide range of legal textbooks, case law, statutes, legal journals, legal encyclopedias,
and other legal treatises.
 It provides insights into legal theories, analyses of court decisions, and discussions
of legal doctrines.
 Legal literatures can be divided into-1.Shruti Literature and 2-Smriti Literarure.

 Hindu Law is a divine law. It is believed that God has preached the law to the
common man through Vedas.
 Different sages and ascetics life have expounded and refined the unique ideas of
life clarified in the Vedas.
 Sources of Hindu Law can be divided into two parts -

Q.1.b. What do you mean by Shruti literature and Smriti literature?

The word Shruti is derived from ‘Shru’ means‘ to hear’.
The word ‘Smriti’ is rooted with ‘smr’ means ‘remembrance’. Smriti means
‘remembered’
 Vedas, Brahmins, Aranyakas and Upnishads are shruti literature.
Shruti means "what is heard". The word is derived from the root “shru” which
means ‘to hear’
 In theory, it is the primary and paramount source of Hindu law and is believed to be
the language of the divine revelation through the sages.
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  It is believed that the rishis and munis had reached the height of spirituality where they
were revealed the knowledge of Vedas. It is derived from the root “vid” meaning ‘to
know’.
 The term Veda is based on the tradition that they are the repository of all knowledge.
 Smriti means "what is remembered".
 Smritis are a written memoir of the knowledge of the sages Many sages, from time to
time, have written the concepts specified in Vedas.
 A systematic study and teaching of Vedas started with Smritis. After the Vedic period,
the regulation of society was required.
 Thus, the study of Vedas and the incorporation of local culture and customs became
important.
 It is believed that many Smritis were composed in this period and some were reduced
into writing, however, not all are known.
 The smritis can be divided into two parts:

Q.1.c. Discuss Vedas as legal literature .

There are four types of Vedas:

 Fundamental or the primary source of Law.

 Contain occasional references on legal matters.
 There are four Vedas –Rig Veda, Yajur Veda, Sama Veda and Atharva Veda.
 Provide information about Society division, Rights, duties of men.
 The content about law is not in systematic way.
 Don't focus directly on laws; they talk about the idea of dharma, (doing the right
thing).

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  The Brahmanas are like the appendices to the Vedas.
 Vedas primarily contain theories about sacrifices, rituals, and customs. Some people
believe that Vedas contain no specific laws, while some believe that the laws have to be
inferred from the complete text of the Vedas.
 Vedas do refer to certain rights and duties, forms of marriage, the requirement of a son,
exclusion of women from inheritance and partition but these are not very well defined
or specific laws.
 Since Vedas had a divine origin, the society was governed as per the theories given in
Vedas and they are considered to be the fundamental source of Hindu law.
 Shrutis basically describe the life of the Vedic people.
 The Vedic period is assumed to be between 4000 to 1000 BC. During this time, several
pre-Smriti sutras and Gathas were composed.
 However, not much is known about them today.
 It is believed that various rishis and munis incorporated local customs into Dharma and
thus multiple "shakhas" came into existence.
 The concept of karma came into existence during this time. A person will get rewarded
as per his karma. He can attain salvation through "knowledge".

Q.1.d. Focus on Dharmsutras as legal literature.

 Old Indian writings that give advice on how to live a good and ethical life.
 Talk about what's right or wrong in various areas, like behavior, rituals, and duties.
 The approximate periods between 800 and 200 B.C.
 The Dharma sutras deal with the duties of men in their various relations
Dharma Sutras
 The Dharma sutras were written from 800 to 200 BC.
 They were mostly written in prose form but also contain verses.
 They were considered as a training manual of sages for teaching students which
contained the knowledge of Vedas with local customs.
 They explain the duties of men in various relationships.
 They do not pretend to be anything other than the work of mortals based on the
teachings of Vedas and the legal decisions given by those who were acquainted with
Vedas and local customs.
 They generally on the names of their authors and sometimes also indicate the shakhas
to which they belong. Some of the most popular Dharma Sutras are:

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i. Gautama - He belonged to Sam Veda school and deals exclusively with legal and religious
matters. He talks about inheritance, partition, and stridhan.
ii. Baudhayan - He belonged to the Krishna Yajurved school and was probably from Andhra
Pradesh. He talks about marriage, sonship, and inheritance. He also refers to various customs
of his region such as marriage to maternal uncle's daughter.
iii. Apastamba- His sutra is most preserved. He also belonged to Krishna Yajurveda school
from Andhra Pradesh. His language is very clear and forceful. He rejected prajapatya marriage.
iv. Vashistha - He was from North India and followed the Rigveda school. He recognized
remarriage of virgin widows.

Q.1.e. What are Dharmshastras?

 Dharmashastra is a broader category of ancient Indian texts that deal with
dharma—moral, ethical, and legal principles
 Unlike the concise Dharmasutras, Dharmashastra texts are more elaborate
and systematic in discussing the rules and norms governing various aspects
of life.
 These texts cover a wide range of topics, including social conduct, justice,
governance, and personal duties.
 Manusmriti is one of the most well-known Dharmashastra texts, offering guidelines
on legal and ethical matters in Hindu society.
 Dharmashastras were mostly in metrical verses and were based on Dharmasutras.
 However, they were a lot more systematic and clearer.
 They dealt with the subject matter in three parts:
i. Aachara - This includes the theories of religious observances,
ii. Vyavahar -This includes civil law.
iii. Prayaschitta- This deals with penance and expiation.
 However, they were a lot more systematic and clearer.
 From the time of their composition, the works of the Dharmashastra have played a
significant role in influencing Hindu culture and law.
 In fact, the shastras were still being cited in cases of legal contracts as late as the mid-
19th century in some regions of India.
 Out of many dharmashastras, three are most important:

Q.1.f. Explain Arthshastra as legal literature.

 Not exclusively legal literature; contains sections on governance and law.
 Discussion on organization of the state, the duties of rulers, and the administration
of justice.

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  It provides insights into legal procedures, punishment, and the role of law in
maintaining order within a kingdom.
The history of tradition of Indian Politics is ancient and dates back during the time of
Vedas.
 The discussions regarding politics are found in ‘smritis’ and ‘puranas’ by the
name ‘dandaniti’.
 References to various political texts are available which studied and explored the
concept of ‘dandaniti’.
 It is perhaps Kautilya’s Arthashastra which stands out to be thoroughly scientific
and most authoritative interpretations of these ancient studies.
 Written in around 4th century BC by the Prime Minister of The Great Mauryan
Empire Kautilya, also known as Chanakya or Vishnugupta, Arthashastra is one of
the most influential and comprehensive treatises in Political Science in the Indian
Vedic Civilization.
 Regarded as quintessence of ancient Vedic wisdom in politics and economics,
Arthashastra holds remarkable relevance in today’s times with some curious
resonance with the thoughts and theories of various philosophers, economists
and political scientists around the world.
 Unlike many other writers in the polity, Kautilya is unique Indian political thinker
who was both thinker and statesman.
 He participated in various social and political revolutions of his Age and
abstracted from his study of conflicts some general principles capable of
universal application and effective in all times and ages.
 With more and more studies in the field of politics and economics and with a
modern outlook and understanding of world affairs, the relevance and
appreciation of Kautilya’s ‘arthashastra’ is incontrovertible.

Arthashastra — An Introduction!

o Arthashastra means the science (sastra) of wealth/earth/polity (artha).

 ‘Artha’ however is bit wider and an all-embracing term with variety of meanings.
 It is used in the sense of material well-being, in livelihood, economically productive
activity trade etc.
 This is bit similar with ‘wealth’ which is defined in ‘Wealth of Nations’.
 In rather simple way, ‘arthashastra’ can be defined as ‘science and art of politics and
diplomacy’.
 This treatise is divided into sixteen books dealing with virtually every topic concerned
with the running of a state - taxation, law, diplomacy, military strategy, economics,
bureaucracy etc.
 The book is a masterpiece which covers a wide range of topics like statecraft, politics,
strategy, selection and training of employees, leadership skills, legal systems,
accounting systems, taxation, fiscal policies, civil rules, internal and foreign trade etc.
Arthashastra advocates rational ethic to the conduct of the affairs of the state.
 The emphasis is on codification of law and uniformity of law throughout the empire.
 In this essay we shall try to explore Kautilya’s views on legal systems, justice and king’s
role in maintaining law and order as discussed in Arthashastra by Kautilya himself.

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 Kautilya on Law and Justice
 Kautilya maintained that it is essential duty of government to maintain order.
 He defines ‘order’ broadly to include both social as well as order in the sense of
preventing and punishing criminal activity. Arthashastra thus contains both the civil law
and criminal law.
 Kautilya ascribed a lot of importance to ‘dharma’. According to him, ‘the ultimate source
of all law is dharma’.
 He appealed in the name of ‘dharma’ to the sense of honour and duty and to human
dignity, to moral responsibility and to enlightened patriotism.
 It’s quite intelligible that the judge in the arthashastra was called ‘dharmashta’ or
upholder of dharma. He maintained that so long every ‘Arya’ follows his ‘svadharma’
having due regard to his ‘varna’ and ‘ashrama’ and the king follows his ‘rajdharma’,
social order will be maintained. Kautilya’s emphasis on duties of King in maintaining
law and order in the society is so much that he writes in Arthashastra, “because the King
is the guardian of right conduct of this world with four ‘varnas’ and four ‘ashramas’ he
[alone] can enact and promulgate laws [to uphold them] when all traditional codes of
conduct perish [through disuse or disobedience].”
 The King was looked upon an embodiment of virtue, a protector of dharma.
 He too was governed by his dharma as any other citizen was.
 Thus if any actions of the King went against the prevailing notion of dharma,
associations and/or the individual citizens were free to question him. He recalls every
time that ‘dharma’ alone is guiding star for every king, or rather every individual and
that following ‘dharma’ one shall have a life of dignity while social order prevailing in
society.
 He remarks, “A King who administers justice in accordance with ‘dharma’, evidence,
customs, and written law will be able to conquer whole world”.
 Kautilya recognized the importance of rational law or King’s law and its priority to
‘dharma’, ‘vyayhara’ and ‘charitra’.
 He maintained that King’s law was to be in accordance with the injunctions of the three
Vedas wherein the four ‘varnas’ and ‘ashramas’ are defined.
 King was not the sole interpreter of dharma.
 In fact there was no specific institution vested with the authority of interpreting
dharma.
 Every individual was deemed competent to interpret it. This was an important factor in
ensuring the non-religious character of the Vedic state.
 Kautilya did not view law to be an expression of the free will of the people.
 Thus sovereignty - the authority to make laws, did not vest with citizens.
 Laws were derived from four sources - dharma (scared law), vyavhara (evidence),
charita (history and custom), and rajasasana (edicts of the King).
 Kautilya prescribe that any matter of dispute shall be judged according to four bases of
justice.
 These in order of increasing importance are: - ‘Dharma’, which is based on truth -
‘Evidence’, which is based on witnesses - ‘Custom’, i.e. tradition accepted by the people -
‘Royal Edicts’, i.e. law as promulgated.
 In case of conflict amongst the various laws, dharma was supreme.
 The ordering of the other laws was case specific.
 Rajasasana ordered the relationship between the three major social groupings — the

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 citizen, the association, and the state. The constitutional rules at the state level were
specified in the rajasasana but the constitutional rules at the level of the association
were to be decided by the members of the association.
 The collective choice and the operational level rules of the association were also decided
by the members of the association though the state did promulgate laws to safeguard
the individual member from the tyranny of the majority in the association.
 Arthashastra outlines a system of civil, criminal, and mercantile law (now known as
business laws).
 For example the following were codified: a procedure for interrogation, torture, and
trial, the rights of the accused, what constitutes permissible evidence, a procedure for
autopsy in case of death in suspicious circumstances, what constitutes defamation and
procedure for claiming damages, valid and invalid contracts.
 We see in Arthashastra that law was not viewed just as code of prohibition, nor was it
limited to corrective justice of law courts. Its range was wider than morality itself and
institutions were creation of law while traditions and customs rested on its sanctions.
 All ideas of society were moulded by it and law was blended with religion, with morality
and with public opinion and by its subtle operations subjected the society to its will.
 The role of law in the society was to bring a just order in society and the tremendous
task was to be shouldered by the King along with his subordinates. As rightly pointed
out by Kautilya in his famous verse — “In the happiness of his subjects lies the King’s
happiness; In their welfare his welfare. He shall not consider as good only that which
pleases him but, Treat as beneficial to him whatever pleases his subjects”
 It contains three parts, which deal with issues related to economic development,
administration of justice, and foreign relations.
 It has 150 chapters, which are distributed into fifteen books.
 Book three, which has twenty chapters and book four, which has thirteen chapters, are
devoted to the administration of justice.
 Kautilya's Judicial System called “Dandaniti,” “the science of law enforcement” is an
important part of The Arthashastra.
 Kautilya codified, modified, and created new laws related to: loans, deposits, pledges,
mortgages etc., sale and purchase of property, inheritance and partition of ancestral
property, labor contracts, partnership, defamation and assault, theft and violent
robbery, and sexual offenses.
 He dealt with law and justice issues relating to both the civil law and the criminal law.
 He offered a truly comprehensive system of justice, which not only incorporated all the
salient elements of a twenty-first century system but also contained a few additional
invaluable insights.

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 Q.1.g. Discuss about Manusmriti.
 Key text in ancient Indian legal literature.
 Provides guidelines on dharma, covering a wide range of topics including social conduct, morality, and legal principles.
 Outlines rules for individual behavior, societal organization, and governance.
 In the legal context, discusses various aspects of law
 It presents a set of rules and principles that were considered authoritative in ancient Hindu society.
 This is the earliest and most important of all. It the most authoritative of the books of the Hindu code (Dharmashastra) in

India.

 Manu-smriti is the popular name of the work, which is officially known as Manava-dharma-shastra. It is attributed to the

legendary first man and lawgiver, Manu.

 The received text dates from circa 100 CE. It is not only defined the way of life in India but is also well known in Java, Bali,

and Sumatra.

 Manusmriti compiles all the laws that were scattered in pre-Smriti, sutras and gathas.
 It contains 12 chapters of stanzas, which total 2,694.
 It deals with cosmogony; the definition of the dharma; the sacraments (samskaras);
initiation (upanayana) and the study of the Vedas (the sacred texts of Hinduism);
marriage, hospitality, funeral rites, dietary restrictions, pollution, and means of
purification; the conduct of women and wives; and the law of kings.
 The Manu-smriti prescribes to Hindus their dharma i.e., that set of obligations
incumbent on each as a member of one of the four social classes (varnas) and engaged
in one of the four stages of life (ashramas).
 The human lifespan was divided into four periods under the Ashrama system in
Hinduism as discussed in Indian texts of the ancient and medieval eras. The four
ashramas are:
 Ø Brahmacharya (student),
 Ø Grihastha (householder),
 Ø Vanaprastha (retired) and
 Ø Sannyasa (renunciate).
 During this period the varna system became quite strong. The Hindu literature classified
the society in principle into four varnas:
 Ø Brahmins: priests, scholars, and teachers.
 Ø Kshatriyas: rulers, warriors, and administrators.
 Ø Vaishyas: agriculturalists and traders.
 Ø Shudras: laborers and service providers.
 The last leads to a consideration of matters of juridical interest, divided under 18
headings, after which the text returns to religious topics such as charity, rites of
reparation, the doctrine of karma, the soul, and hell.
 The text makes no categorical distinction between religious law and practices and
secular law.
 Its influence on all aspects of Hindu thought, particularly the justification of the caste
system, has been profound.
Q.1.h. Write the legal facts of Yajanvalkya Smriti.
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  Addresses various aspects of personal conduct, family law, inheritance, and societal
duties.
 Offering insights into how people should behave and interact, especially in
legal and ethical matters, as perceived in ancient times.
 Yajnavalkya also gave a lot of importance to customs but holds the king to be below the
law.
 He considers the law to be the king of kings and the king to be only an enforcer of the
law. He did not deal much with religion and morality but mostly with civil law.
 It includes most of the points given in Manusmriti but also differs on many points such
as the position of women and Sudras.
 He was more liberal than Manu.
 Vijnaneshwar's commentary 'Mitakshara' on this smruti, is the most important legal
treatise followed almost everywhere in India except in West Bengal and Orissa.
 Though written after Manusmruti, this is a very important smriti.
 Its language is very direct and clear.
 The text is the "best composed" and systematic specimen of this genre, with large
sections on judicial process theories, one which had greater influence in medieval
India's judiciary practice than Manusmriti.
 It later became influential in the studies of the legal process in ancient and medieval
India, during colonial British India, with the first translation published in German in
1849.
 The text is notable for its differences in legal theories from Manusmriti, for
being more liberal and humane,
and for extensive discussions on evidence and judiciousness of legal
documents

Q.1.i. Discuss about Narad smriti.

 The first legal code, mostly free from moral and religious feelings.
 Deals only with vyavhara.
 Formulated and declared new rules.
 Does not agree with unlimited law-making power to the King.
 Narada confersrightsonwomen to hold and inherit property and is not as harsh to
Shudras asManu
 Naradasmriti is an Indian literary tradition that serves as a collection of legal maxims
relating to the topic of dharma.
 This text is purely juridical in character in that it focuses solely on procedural and
substantive law.
 Known as the "juridical text par excellence," the Naradasmriti is the only
Dharmashastra text to not cover areas such
 as righteous conduct and penance.
 Its focused nature has made the text highly valued by rulers and their governments, in
the Indian subcontinent and southeast Asia, likely as an aid of carrying out their dharma
of justly ruling the country

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 Q.1.j. Discuss the Tradition and custom.
• Custom was the main vehicle of legal development in Ancien tIndia.
• The digest writers and commentators in their time further incorporated the
existing custom.
• The four legs of law wereDharma, vyavhara, charita (custom),and
Rajyshasna(Royalordinanceorkingmade law).
• Thekingmadelaw wassupremeoverthefirstthree
andthecustomwassupremeoverfirsttwo.
Requirementof aValidCustom:-

1. Custom should be ancient 2.Custom should be continuous 3.It should

be certain 4.It should not be unreasonable 5.It should not be immoral
6.Custom must not be opposed to public policy, 7.It must not be
opposed to law
Kind of Custom:-1-Local Custom,2-Family custom ,3- Caste or Community custom
 Most of the Hindu law is based on customs and practices followed by the people all
across the country. Even smrtis have given importance to customs. They have held
customs as transcendent law and have advised the Kings to give decisions based on
customs after due religious consideration. Customs are of four types:


 Local Customs - These are the customs that are followed in a given geographical area.
 Family Customs - These are the customs that are followed by a family for a long time.
These are applicable to families where ever they live.
 Caste and Community Customs - These are the customs that are followed by a
particular caste or community. It is binding on the members of that community or caste.

 Guild Customs - These are the customs that are followed by traders.


 Ancient: Ideally, a custom is valid if it has been followed for hundreds of years. There is
no definition of ancientness, however, 40yrs has been determined to be an ancient
enough. A custom cannot come into existence by agreement. It has to be existing from
long before. Thus, a new custom cannot be recognized.

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  Continuous: It is important that the custom is being followed continuously and has not
been abandoned. Thus, custom maybe 400 yrs old but once abandoned, it cannot be
revived.
 Certain: The custom should be very clear in terms of what it entails. Any amount of
vagueness will cause confusion and thus the custom will be invalid. The one alleging a
custom must prove exactly what it is.
 Reasonable: There must be some reasonableness and fairness in the custom. Though
what is reasonable depends on the current time and social values.
 Not against morality: It should not be morally wrong or repugnant.
 Not against any law: If a custom is against any statutory law, it is invalid. Codification
of Hindu law has abrogated most of the customs except the ones that are expressly
saved.

Topic 2: Legal Traditions in Medieval India: Salient Features of Islamic Criminal

Law, Sources of Islamic Law and HanafiSchool of Law

Q.2.a- Write the features of Islamic Criminal law.

Ans: a) Based on the priciple of holy Quran. b) Mainly

interpreted by Hidaya and Fatwa.

 Law is the command of a political superior to a political inferior.

 Its objective is to regulate the conduct of the members of a society for maintaining peace
and order and to promote social good.

 In olden times religion and law were deemed to be part of each other and there was no
clear-cut line of difference between the two.

 It is for these reasons that an old old legal system we find a religious touch in old legal
system And text and their foraging to religion..

 Laws, therefore it is not wrong to say that sometimes it is the command of religious
superiors not the political superiors.

 These commands may be contained in their verbal instructions in the religious books
supposed to have been written or dictated by them to their disciples.

 God is the supreme religion .

 Hindus trace the origin of their loss from Vedas and Smriti is similarly Muslims trace
their origin of law from the holy Quran.

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  It is clear that Muslim law claims at origin from defined sources that is called.

 Quran is the paramount source of Muslim law.

 It also owes It’s origin to certain juristic regulations too.

 Notable features of muslim legal system Is that the complete identification of its origin
with the personality of the profit.

 It is a one-man system, it is only one man affair we can say.

 As a personal law exactly like Hindu law.

 It does not there for apply to all person living in specified territory without
discrimination.

 It applies only to person answering a specified description, it applies to Muslims

whether they are Muslims Or by conversion.

 A person who follows the Muslim religion is a Muslim .

 To be a Muslim Firmly believe that there is only one God and Prophet Muhammad is his
prophet.

Q.2.b- Discuss about types of crime under Islamic

Law
Ans: Under the Islamic Jurisprudence three kinds of offences-
 Offence against God,
 Offence agains State and
 Offence against the individual.

• Who introduced the Muslim law of crimes for purpose of administration of criminal
justice.

• It was not only in force during the Mogul age but also for over 100 years during the
british rule.

• Aurangzeb who was interested in enforcing Islamic law appointed a group of learned
theologians to prepare a comprehensive legal digest and the work that they had
composed came to be known as FATWA I ALAMGIRI.

• three kinds of offences namely ● Offences against GOD ● OFFENCES AGAINST STATE
● OFFENCES AGAINST INDIVIDUALS

• Offences against God included apostasy, heresy and criticising the religion of Salam or
the conduct of Prophet Muhammad.
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 • These offences were punishable with death.

• There is no unanimity among the Muslim school of law regarding punishment to

women offenders.

• While Hanafi school prescribes imprisonment, the other three schools favour capital
punishment to women offenders.

• Death banality is prescribed for heretics.

• The law of Islam compounded offences against the state and the private individuals.

• The usual punishment for murder was death.

• But it could be compensated with money if the deceased man’s Relatives did not
insist on retaliation.

• For murdering a non-Muslim, a Muslim was not put to death if the latter had not killed
the former treacherously.

Q.2.c-. Describe the punishment under Islamic Law.

Ans: The basic principles of Mohammedan law of crime and punishment were contained
under following categories-
 Hadd/ Huddud
 QisasTazir
 Siyasat
 Tashir
 Diya

• The punishment for various crimes were classified into mostly five categories under
the Islamic criminal law and they are as follows:- ● Hadd ● Tazir ● Qisas and Diya ●
Tashhir ● Siyasat Hadd crimes

Hadd crimes (fixed penalities)

• Hadd crimes are those which are punishable by a pre-stab list punishment found in
Quran.

• These are most serious of all crimes found by an exact reference in the Quran to a
specific act and a specific time for that act.

• There is no compensation or reducing of the punishment for this type of crime.

• These type of no minimum or maximum punishment is attached to them.

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 • No judges can change or reduce the punishment for the serious crimes. These crimes
are murder apostasy, theft, adultery, slander or defamation , Robbery, alcohol
drinking .

• The punishments are like stoning to death, Cutting of right hand for theft et cetera.
This punishment is applied equally to the Muslims and non-Muslims.

• CRIMES & PUNISHMENT

• THEFT- Loss of right hand

• Robbery- Loss of hands and fee

• Robbery with murder- Death

• Apostasy.- Death

• Drinking wine.- 80 strokes of whip

Tazir (Discretionary punishments )

• These crimes are less serious than they had crime is found in the Quran.

• They can vary according to the circumstances.

• The change from time to time in from place to place.

• The judges have the right to punish the culprit according to their discretion.

• The court decided the type of punishment according to their wishes.

• These type of punishments are given for reforming the criminals.

• The punishments were like cutting of tongue or impalement etc..

• Gambling, minor theft, Injury causing et cetera were the crimes for which the tazir
was given.

• Qisas (retaliation) Diya (blood money)

• Qisas meant,in principle,life for life and limb for limb .

• Qisas was applied to cases of willful killing , murder by error , serious wounding ,
maiming , mutilation etc..

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 • Qisas were regarded as the personal right of the victim or his next of kin,to inflict a
like injury on the wrong doer as he had inflicted.Under qisa the relatives or
successors of the murdered person could excuse the murderer.

• Qisas became diya When the next of the kin of the victim was satisfied with money as
the compensation for the price of blood.

• This also could not be reduced or modified either by the Qazi or the Emperor.Qisas
could be exchanged with diya.

• The victim has to take this compensation with the government’s approval or they will
be considered as criminals.

• If the murderer is too poor to pay the compensation then the community or the clan
may be required to pay to the victim’s family Tashhir

• It was an un Islamic But an ancient Indian punishment which was continued In the
medieval period.

• Meant causing disgrace or humiliation to the offender by parading him on an donkey

with the face turned towards detail.

• Sometimes the culprits head what is Shaven and face blackened .

• This form of punishment continues even at present.

• It was also retained by the moguls.

• Siyasat

• If authorized the ruler to prescribe punishment for those offences which not covered
under any of the categories mentioned above.

• Such punishment could be inflicted on the offenders in public interest.

• Siyasat punishment were exemplary in nature and their gravity could even exceed
that of Hadd or Quisa if the circumstances so warranted the purpose of siyasat was to
enable the ruler to maintain law and order in the community by using his
discretionary authority for the sake of public tranquillity.

Q.2.d- Write the sources of Islamic law.

Ans: There are two sources of Islamic Law
1. Primary Sources
➢ The Quran,
➢ The Sunnah or Hadith (the traditions or known practices of the Prophet
Muhammad),

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 ➢ The Ijma (Consensus),
➢ Qiyas (Analogy).

2. Secondary Sources
➢ Urf
➢ Judicial decision
➢ Legislature
➢ Justice equity and good conscience

 Muslim Law is founded upon 'Al-Quran' which is believed by the muslims to have
existed from eternity, subsistent in the very essence of God.

 The prophet Mohammad himself declared that it was revealedtohim by the angel
"Gabriel" in various portions and at different times.

 Its text sare held by Muslims to be decisive as being the words of God (Kalamallah)
transmitted to man through the Prophet.

 Besides inculcating religion and theology, the "Quran" contains also passages which
are applicable to jurisprudence, which formthetheword Quran which is the "divine
communication' and revelation to the Prophet of Islam is he first source of Muslim
law. principal basis of the "Sharia."

 The Quran.

 •It is the paramount and universal authority of Muslim Law.

 It contains the revelation of God to His Prophet Mohammad, through angel Gabriel.

 Thus it embodied the very word of God as they were communicated to the Prophet.

• The Quran in its present form is a book divided into 114 Chapters and consistsof
approximately 6666 verses. The verses of Quran are called Ayal and the chaptersofthis
Holy Book are called Sura.

Not more than 200 verses are concerned withlegal principles and nearly about 80
verses are concerned with marriage, dower, divorceand inheritance.

Main Features of Quran

(a) Quran is the primary source of Muslim Law, in point of time as well as inimportance.
Quran is the first source of Muslim law.

The Islamic religion andIslamic society owes its birth to the word of Quran.

(b) It contains the very words of God as communicated to Prophet Mohammadthrough

angel Gabrel.

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 (c) It was given to the world in fragmentary forms, extendingover a period of twenty
three years.

(d) It originally had for its objects (i) repealing objectionable customs, suchas, usury,
unlimited polygamy and gambling, etc., and (ii) effecting social reforms, suchas raising
the legal status of women and equitable division of the matters of inheritance and
succession.

Sunnat and Ahadis (Traditions) :-

It is the belief of Muslims that revelationswereoftwo kinds Manifest (zahir) and internal
(batin).

Manifest revelations consistedof the communications which were made by the angel
Gabriel under the directionof God to Mohammad in the very words of God.

Quran is composed of manifest revelations.

The ideas contained in such opinions of the Prophet were inspiredbyGod.

During his lifetime, the Prophet pronounced his verdicts, did certain thingsandalso
allowed tacitly he doing of certain things permitted by Islam. Consequentlywhat was
said or done or upheld in silence by the Prophet" become a primary source of Muslim
Law, second in point at that time and authority, only to thepiousQuran and is technically
known as Sunnat.

Sunna means the model behavior of theProphet.

Kinds of Sunnat

(I) Sunnat-ul-fail -Traditions about which the Prophet did himself.

(II) Sunnat-ul-qaul - Traditions about which be enjoined by words.

(III) Sunitat-ul-tuqrir i.e., The things done in his presence without his disapproval.

The Ijma (consensus of opinion)

ljma has been defined by Sir Abdul Rahim as "agreement of the jurists
amongthefollowers of Prophet Mohammad in a particular age on a particular
questionof law”Importance of Ijma.-The Law is something living and changing
Social valuesaresubject to constant changes and these changes in their turn
affect law.

Hanafi School is of the view that law must change with the changing of times.

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 Theprinciple of Ijma is based upon the following texts: "God will not allowHis
peopletoagree on an error and whatever Muslims hold to be good is good before
God" Withthe march of time, development of civilization and the expansion of
the

IslamicInfluence numerous problems arose which could not be decided by

referencetoonly Quran and Ahadis (Traditions).

The jurists, therefore, evolved the principle of lima The laws are neede or the
benefit of the community, therefore, the DivineLegislator has delegated power
to lay down laws by the resolution of thosemenin the community who are
competent in that behalf, i.e., the Mujtahids or jurists.

Kinds of ljma

The ljma is of three Kinds.

(a) ljma of the Companions of the Prophet - It is universally acceptable,

throughout the Muslim world and is unrepeatable.

(b) Ijma of Jurists. So far this particular kind of Ijma is concemed there is
divergence of opinion regarding-a) the exact procedure of formation-
Whichnowhere has been laid down. (b) the exact number of jurists necessary
toformljma, (c) whether the ljma is by majority decision or by unanimous
opinion, (d) whether the decision of a jurists should be preceded by reasoning,
and (e) whether all of thejurists should sit together to form ljma.

(c) Ijma of the People. Though in theory the opinion of Mulsimpopulation

asawhole may have any importance but in actual practice Ijma of
Muslimpublichadnovalue with regard to legal matters, but in matters relating to
religion, prayer andother observances great weight is attached to it.

Qiyas (Anaogical Deductions): This is the last primary source of MuslimLaw.

Qiyasmens reasoning by analogy from the above three sources, i.e., the Quran,
theSunnat and ijma. In Qiyas rules are deduced by the exercise of reason. This
hasbeen supported by a Hadis of prophet which may be quoted here, Thus Qiyas
may be defined as a process of deduction by which the lawof thetext isapplied to
cases, which though not covered by the language are governedby reasonof the
text. Thus, it should be noted that Qiyas does not purport to create newlaw, but
merely to apply old established principles to new circumstances.

Q.2.e- Write the judicial features of Quran.

 The Quran is the first source of Muslim law, principal basis of the "Sharia."

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  It is the paramount and universal authority of Muslim Law.
 114 Chapters (Sura) approximately 6666 verses (Ayat)
 200 verses are concerned with legal principles, 80 verses are concerned with
family law.

It is the paramount and universal authority of Muslim Law.

It contains the revelation of God to His Prophet Mohammad, through angel Gabriel.

Thus it embodied the very word of God as they were communicated to the Prophet.

The Quran in its present form is a book divided into 114 Chapters and consistsof
approximately 6666 verses.

The verses of Quran are called Ayal and the chaptersofthis Holy Book are called Sura.

Not more than 200 verses are concerned withlegal principles and nearly about 80
verses are concerned with marriage, dower, divorceand inheritance.

Main Features of Quran

(a) Quran is the primary source of Muslim Law, in point of time as well as inimportance.
Quran is the first source of Muslim law.

The Islamic religion andIslamic society owes its birth to the word of Quran.

(b) It contains the very words of God as communicated to Prophet Mohammadthrough

angel Gabrel.

(c) It was given to the world in fragmentary forms, extendingover a period of twenty
three years.

(d) It originally had for its objects (i) repealing objectionable customs, suchas, usury,
unlimited polygamy and gambling, etc., and (ii) effecting social reforms, suchas raising
the legal status of women and equitable division of the matters of inheritance and
succession.

Q.2.f-Discuss about Sunnat

Ans: Sunnat or Sunnah means the model behavior of the Prophet

.Kinds of Sunnat
 Sunnat-ul-fail- Traditions about which the Prophet did himself.
 Sunnat-ul-qaul- Traditions about which been joined by words.
 Sunitat-ul-tuqrir- The things done in his presence without his disapproval.

Q.2.g-Discuss about Ijma.

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 Ans: The Ijma (consensus of opinion)
Kinds of ljma
 Ljma of the Companions of the Prophet.
 Ijma of Jurists.
 Ijma of the People.
Essential Ingredients of a valid Ijma
 The Consensus
 The Jurists
 Jurists of aparticula period
 Jurists to be the Muslims

 Consensus on a Religious matter

Q.2.e- Discuss about Hanafi School.:

 Established by Imam Abu Hanifa in 8th century.

 It is one of major Sunni School of thought.
 Relies on the Quran and Hadith but also incorporates reasoning (Qiyas), Consensus
(Ijma) and public interest in legal decisions.
 He constituted a committee of 40 members for the codification of Islamic law.
 The committee too k 22 years to complete its work.
 The collection thus compiled is known as KUTUB ABU HANIFA.

Abu Hanifa a Numan Ibn Thabit ,commonly Known as ImamAbu Hanifa, thefounder of
Hanafi School was born in the year of 80 A.H.at. Kufa

He studiedIslamicJurisprudence in the city of Kufa. His public lectures in Kufa soon gave
himfameasgreat jurist.

People from all corners flocked daily to hear himand questionontheritual and law.

Abu Hanifa was endowed with talents of exceptional nature andhadthe true jurists, gift
of detecting nice dstinctions.

He possessed remarkablepowersof reasoning and deduction which combined with the

resources of a retentivememory and a clear understanding brought him into rapid
prominence as amaster of jurisprudence.

He trained a class of jurists who not only expert in lawbut alsowere expert in various
disciplines.

He constituted a committee of 40 members for the codification of Islamic lawandthe

committee took 22 years to complete its work.

The collection thus compiledisknown as KUTUB ABU HANIFA.

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 He was so popular and was held in such highesteem that his funeral prayers, it is
reported were laid for ten days, and day about fifty thousand people attended.

Among all school of Islamic Jurisprudence hisschool got so much popularity that
majority of the population of Muslimworldat present is follower of Hanafi School.

LEGAL DOCTRINES OF HANAFI SCHOOL-

Its Salient Features.

 The expansion of Islam beyond the borders of Arabia, the foundation and
organization of the caliphate, the extension of Islamic State and accessionof
newlands into, it, resulted into contract of different cultures and races.

 The simpleIslamic society had to face various political, social and legal problems.

 It wasImamAbu Hanifa, who felt the need of time and with a sacred goal in Quran
in thelight ofthe precepts of the Prophet he started systematic study of Islamic
Jurisprudenceand began the codification of Islamic law.

 In this work he was assisted by hislearned disciples like Imam Abu Yasuf, Zafar
Imam Muhammad, who were expertsin various disciplines.

 METHODS OF FORMULATING OF LEGAL PRINCIPLES-ImamAbu Hanifa based his

doctrines on Quran and Hadith.

 According to him the Quran is eternal in its original essence. It is the word of God,
and is his inspired word and revelation, it is necessary attribute of God.

 It is not God, but still, it is inseparable fromGod.

 TheQuran he regarded as the first and primary source of deducting the formof
ritualsbearing on Civil and Criminal laws, or for deducting the moral principles
whichshould govern a case.

 Ibn Khaldun wrote for that the Imam Abu Hanifa narratedonly seventeen
traditions from passages occurring in the Quran tested by hisownopinion.

 There can be no doubt that he was considered by his contemporariestorely less

upon analogical deductions than the other jurists.

 It would not, however, be correct to say that Abu Hanifa lacked a sufficient
knowledge of traditions, or that he did not regard them as a legitimate sourcesof
law.

 In sifting the tradition Abu Hanifa was no doubt more strict than the others,
andthe test people generally accepted as genuine.

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  Hanafi school of thought In the history of Islam, law can be broadly divided into
two

 ● Shar ● Urfi

 The first one shar Is based on the principles enunciated by the Quran, hadis , Ijma.

 The Quran is the most important source of law .

 The Muslims hold the view that Prophet Muhammad was the best interpreter of
the Quranic revelations.

 URFI LAW In the development of Islamic jurisprudence rules and regulations

were issued from time to time, by rulers of different Muslim state.

 The regulations were based on justice and fair play and mostly related to matters
like trade, property, war, taxation et cetera. These have come to be collectively
known as the Urfi Law.

 Many complexities arose due to conflicting interpretations by numerous jurists.

 As a consequence many schools of law grew up in both the sects of muslims i.e.,
SHIA AND SUNNI.

 There were mainly four schools of law in Sunni Muslims and they were as follows

 HANAFI SCHOOL 2. MALIKI SCHOOL 3. HANBALI SCHOOL 4. SHAFI SCHOOL

 Imam Abu Hanifa based his doctrines on the Quran and Hadith.

 According to him the Quran is eternal in its original essence.

 It is the word of God, and is his inspired word and revelation, it is a necessary
attribute of God.

 It is not God, but still, it is inseparable from God.

 The Quran he regarded as the first and primary source of deducting the form of
rituals bearing on Civil and Criminal laws, or for deducting the moral principles
which should govern a case.

 Imam Abu Hanifa narrated only seventeen traditions from passages occurring in
the Quran tested by his own opinion.

 There can be no doubt that he was considered by his contemporaries to rely less
upon analogical deductions than the other jurists..

 It would not, however, be correct to say that Abu Hanifa lacked a sufficient
knowledge of traditions.

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  Of these four schools, the Hanafi and the Shafi schools Gained greater popularity
and even now, the Hanafi school is followed in Northern India.

 This school gives greater importance to rational deductions and it was greatly
strengthened by The two immediate Disciples of imam Abu Hanifah named IMAM
YUSUF AND MOHAMMAD AL SHAYBANI.

 Imam Yusuf left an important textbook on the law governing the state demand on
agricultural produce and agrarian administration.

 This school had the most liberal attitude towards non-Muslims of a Muslim
empire.

 The Hanafi School is one of the four major schools of Sunni Islamic legal
reasoning and repositories of positive law.

 It was built upon the teachings of Abu Hanifa (d. 767), a merchant who studied
and taught in Kufa, Iraq, and who is reported to have left behind one major work,
Al-Fiqh al-Akbar.

 While the Hanafischool, along with other Sunni schools, utilizes qiyas (analogical
reasoning) as a method of legal reasoning, Abu Hanifa himself relied extensively
on ra’y (personal opinion).

 He also favored the use of istihsan, commonly known as juristic preference,

which, in some circumstances, can operate to ameliorate harsh consequences that
might otherwise flow from strict legal reasoning, and which is believed by some
to be based on principles of equity as interpreted by the jurist.

 Hanafi doctrines have always been considered among the most flexible and
liberal in Islamic law, including in the areas of criminal law, treatment of non-
Muslims, individual freedoms, marriage and guardianship, and ownership and
use of property.

 Officially adopted by the Ottoman Turks in the 16th century, Hanafi

jurisprudence remains the most influential school in the world today and is used
in Jordan, Lebanon, Pakistan, Syria, Turkey, and the United Arab Emirates.

 With respect to family and personal law issues, Hanafi fiqh predominates in
Bangladesh, Egypt, India, Iraq, Pakistan, Syria, and, for significant minority
populations, in Iran and Malaysia.

 The Constitution of Afghanistan privileges Hanafi jurisprudence as a residual

source of law in the absence of explicit legislation or other constitutional
provisions.

TOPIC 3 :- LAW MAKING AND LAW INTERPRETATING

PROCESS

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 Q.3(a) :- THROW LIGHT ON THE LAW MAKING AND LAW INTERPRETATING PROCESS
IN ANCIENT INDIA.

 A body constituted for purposes of framing laws, in the modern sense, doesnotappear
to have existed in ancient India.

 It would be too much to read inancientIndian literature the modern parallels, Till
about the beginning of the Christianera, Vedas (srutis ) constituted the main leg of
law.

 They were the Paramount authority, Sacredness 1s attached to the Vedas as they are
of supernatural origin.

 TheVedas were difficult in legal matters, they served a useful purpose as the
societywassmall and tribal in character.

 When the society grew complex and the Vedic regulations were foundtobedifficult to
relate current practice, the smriti codes came in handy to fill thisgap.

 The smriti regulations took into consideration the needs of the

changingsocietyinformulating laws to govern all aspects of life, secular and spiritual.

 Though they drew heavily from the Vedas, the chief merit of the smritis lies in the
regardtheyshow for the prevailing practices in the society. In the history of
Indianjurisprudence we are met with, for the first time ordinances or laws
emanatingfromthe human source or human authors as opposed to divine
authorship. Kautilya was the first thinker to conceive of statutory law.

 Accordingtohim, royal order supersedes all other sources of law including dharma.

 Further, hesaysin case of conflict between the sacred law and the rational law,
thelattersupersedes the former.

 It is evident from this there is an exaltation of royal power, thoughtherajasasana has

to be in accordance with the dharma.

 Even if this pronouncement ofKautilya were taken as didactic, Asoka's edicts give
clear proof of all pervadingcharacter of royal orders touching even the social and
religious life of thepeople.

 This is the first instance where the state took upon itself the responsibility of
lawmaking to regulate large segments of the society.

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  As for the corporations formed for purposes of social or economic activities, such as
the srenis, nigamas, ganas , etc, the srenidharma or the rulesandregulations of the
guilds were determined by the executive committee andtheywere binding on their
members.

 The king is required to take cognizanceof thesrenidharma in deciding disputes.

 Thus the law-making process passed throughatleast three main phases, divine
authorship to human authorship and finally totheKing, the fountainhead of justice.

 With the passage of time and with the recognition of a sphere of statutorylaw, a
distinction between moral and positive law, and the sanctions of both, cameto be
understood.

 But such factors as the objectification of sacred lawinthevarnastructure prevented a

sharp delineation of the two that would allowthe individual freedom of moral choice
and prevent the interference of the state in the relationofvalues.

 In the greater part of the Vedic period, the seers or the sages appear
tohaveinterpreted the law.

 Therishis of theupanishad were regarded as the seersof truthand the truths they
realized through institution were considered as identical withthecommands of the
Creator.

 The definition ofsista as given byBaudhayanaechoesthe sentiment.

 According to him, thesistas are those "who are free fromenvy, freefrom pride
contended with a store of grain sufficient for ten days, freefromcovetousness and
tree from hypocrisy, arrogance, greed, perplexity and anger, whoin accordance with
the sacred law, have studied the Veda together withitsappendages, know how to
draw inferences from that and are able to adduceproofsperceptible by the senses
from the revealed texts".

 It is clear fromthis that menofunimpeachable character, honest and well-versed in the

sacred texts interpretedthelaw.

 In fact, the Vedic Sabha was made up of such learned men who helpedthekingin the
administration of justice.

 TheDharmasastra literature shows an awareness to relate the lawand traditiontothe

changing needs of the community or evolving social conditions.)

 This is most apparent in theYajnavalkya Smriti . TheDharmasastras envisage a

commissionconsisting of learnedBrahmins to determine the needs of the people and
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 assist theking in judicial administration. In this, we see a definite step towards the
accommodation of various religious creeds and an attempt to take cognizancefor
their rules and customs in administering justice.

 There is also a reference to the parishads consisting of three, fiveor tenmembers,

versed in the Veda to settle what law was and what was not, ie. tointerpret the law.
There were the judges and assessors (sabhyas).

 Thequalifications prescribed for them do suggest they were required to be menof

highlearning, versed in law, devoted to their Work and capable of bringing
roundthekingon the right path of justice.

 They set the king on the right path by theproperinterpretation of law.

 A new dimension to the process of interpreting lawcametobe added when pleaders

came to be associated with the argument of thecasesbefore the courts.

TOPIC 4 :- LAW OF SUCCESSION

Q.4(A) what is the law of succession under the muslim law?

 The Turko-Afghans failed to evolve a definite law of succession to the throne.

 TheIslamic ideals required a sovereign to "be a male adult, Suffering fromnophysical

disability, a free-born Muslim having faith InIslam and acquainted with its doctrines,
capable of leadership, fit to 8Overn on principles of equity and justice andthat heshould
be elected by the people".

 These ideals were followed only in breaches. Razia was raised to the throne though a
woman and Kaiqubad remained theSultanas a paralytic.

 Thus, there was no law of succession to the throne.

 The principle of hereditary succession and nomination of successor by the last ruling
Sultancameinto vogue, but if somebody usurped authority by force they did not hesitate
tooffer homage to him.

 The sword also sometimes decided the issue of successionastheinstances ofAla-ud-din

Khilji andBahlol Lodi show.

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 TOPIC 5 :-ADMINISTRATIVE DIVISIONS AND
ADMINISTRATIVE OFFICERS

Q:- 5(a) Describe administrative divisions during medieval india.

 Administrative divisions (Sultanate Age) For the sake of administrative convenience,

the empire was divided intoprovinces called Iqtas.

 The head of the Iqtas was variously called as naib, Sultan, nazim, muqti or wali.

 The administrative machinery of the provinces resembledthose of the Central

Government.

 The heads of the provinces were requiredtosendannual report of their income and
expenditure to the Sultan and deposit thebalancein the central exchequer.

 In the event of waging war and achieving victory theshareof the state in the spoils of
war was to be sent to the Sultan.

 The Sultans kept awatchful eye on the provincial heads.

 Prior to the end of the thirteenth century, there were no smaller administrativeunits
below the provinces.

 Later the Iqtas were divided into smaller units calledshiqqs and they were placed in
charge of shiqqdars.

 The shiqqs were further subdivided into sarkars and the sarkars into parganas.

 They were respectivelyplaced in charge of shiqqdar-i siqq-daran and awil.

 Greater emphasis was laidonthe pargana administration as it was there that the
government came intodirect contact with the peasants.

 The village was the lowest unit of administration, administered by local hereditary
officers and the village panchayat.

 The hereditaryvillage officials like the Chaudhari, the Patwari, the Khut, the
Muqaddamandthe Chaukidar helped the government in the collection of revenue.

 They continuedtoenjoy certain privileges as was before, except during the reign of Ala-
ud-din.

 Thevillage panchayat settled disputes among the villagers and looked after
thesociological needs of the village community.

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  The empire was divided into provinces called subas. The suba was not merelyan
administrative unit of manageable size, but a historical tract.

 The number of subas varied from time to time.

 There were fifteen provinces during the reignof Akbar and twenty during the reign of
Aurangzeb.

 The head of the province wasvariously designated as Nizam, Sipahsalar or simply

Subedar.

 The Subedar wasassisted by the provincial Diwan who was directly appointed by the
Emperor or theImperial Diwan.

 He was not subordinate to the Subedar but to the Imperial Diwan.

 There were other officers like Bakshi, Sadr Qazi, Kotwal, the Waqayanavis andinsome
provinces mirbahr and daroga-dak-chauki who assisted the Subedar inadministering
the province.

 The provinces were divided into districts called sarkars. They were of twotypesa) those
that were ruled by officers appointed by the Emperor subject to imperial regulations
and b) those in the territory of the Rajput or other tributary rulers, governed by their
representatives according to ancient traditions. Faujdar wasthehead the district.

 He was assisted by Amal guzar (Finance Officer), Bitik chi (whomaintained land
records) Khanandar (Treasurer), Kotwal and qazi. Every district was divided into
parganas.

 The Pargana was composedof numerous villages. The head of the Pargana was called
Shiqdar and he wasassisted by Amil (Finance Officer), Fotadar (treasurer).

 Qanungo (who preparedall papers concerning agriculture and collection of revenue)

and Karkuns (clerks).

 The village administration was left undisturbed by the Mughals.

 They hardlycame into close contact with the village folk and respected Indian usages
andinstitutions.

 They only realised the taxes and left the people free to managetheir affairs through their
panchayats.

 Kotwal was placed in charge of the town.

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  He performed such duties as thepreservation of peace and order, patrolling of the city at
night taking note of thenewcomers and aliens watching the conduct and morals of the
citizens, regulatingcommercial transactions by supervising weights and measures, coins
appointingguild masters and brokers and looking after the welfare of labourers and
artisans.

 He was assisted by the city army spies and detectives, news writers, sweepers and
scavengers.

 The Mughal Empire consisted of two classes of villages-landlord villagesand ryotwari

holding villages Village administration was placed in charge of Muqaddams,

 In case of landlord villages he was appointed by the appointedbythegovernment.

 His salary was made up by an allowance from the government, feefrom the villagers
and income from his own share of village land.

 He performedsimilar functions as Kotwal.

 He was assisted in the administration by Patwari (accountant).Munsiff, the

Superintendent, the Land Surveyor and Thanadar. TheThanadar performed police
functions like the Kotwal of the city.

 If the criminal wasfound in the jurisdiction of another Thanadar, he shifted the burden
to him.

 The village officers were controlled by the Qanungo.

 Over the Qanungo was theTahsildar and over him was the Faujdar. The Faujdar also
super vised the roadsinthe rural tracts and paid compensation for daylight robbery.

Q.5:-(b) Describe the administrative officers during medieval india.

 Administrative Of icers In administering the State, the Sultan was assisted by a number
of officials, Theyincluded: The Naib or Deputy Sultan, a post created during the reign of
BahramShah, appointment to this post was made when a ruler was weak or minor,
andheranked above the wazir, Ala-ud-din gave this office to a nobleman as a mark of
special favour.Wazir : He was the Prime Minister and was placed at the headof
thefinance department called the Diwan-e-Wazarat.

 He supervised not only theincomeand expenditure of the state but all other
departments also.

 Many officers andsubordinates, most important among them being the Naib-Wazir,

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  Mushrif-Mamalik(auditor general) and Mustaufi-e-Mamalik who was entrusted
with the supervisionover expenditure, assisted him.

 Ariz-i-Mumalik: He was the head of the military department called Diwan-i-arz.

 Hewas responsible for the organization, maintenance and control of the armedforces.
Dabir-i-Khas:

 He was the head of department of records called Diwan-i-Insha. He was in charge of all
formal or confidential correspondencebetween the Sultan with other high dignitaries
and officials.

 Sadr-us-Sudur: He was the head of the ecclesiastical department The propagation of

Islam, observance of its principles and protection of privileges of Muslims were his
primary duties..He maintained a separate treasury which received all collections from
Zakat (a religious tax on the Muslims) and utilised it for providing financial assistance to
Mosques, Maqtabs (educational institutions), learned men, saints, theorphaned or the
disabled.

 Qazi-ul-quzat: He was the head of the judicial department and was the highest judicial
officer in the state after the Sultan. Usually theposts of Sadr-us-sudur and the Chief Qazi
were combined in a single person.

 Barid-i-Mumalik: He headed the information and intelligence department.

Hecontrolled the dakchaukis or news outposts. He was responsible for the
espionagesystem.

 Besides these, there were numerous other officers of various gradesandranks created
from time to time to meet special needs. For instance, Muhammad bin Tughluq created
the department of agriculture called Divan-i-amir Kohi.

 The royal Karkhanas, the royal kitchen, the royal stables and the royal household were
manned by officers of different ranks. The Sultan maintainedhis personal bodyguards,
which consist ed of trusted men. Departmental administration under the Mughals The
Mughals inherited an administrative structure, which was by nomeanssound.

 Akbar raised the structure of the Mughal administration on a systematicplan.

 He was an innovator in many fields of adminis tration and possessedpractical wisdom

to implement those reforms.

 The success of the government at theCentredepended on the personal supervision of

the monarch as he was the sole director of the state machine, the centre of all
aspirations and the object of all reverence.

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  Babur ruled for four years and since he spent most of the time in wars, hepaid no
attention to the organization of administration.

 Under Humayun theworkofthe central government was divided into four departments.
1. Atashi: It was a military department entrusted especially with the
maintenanceofartillery and the manufacture of firearms. 2. Hawai: The department
looked after the royal wardrobe, kitchen and stables. 3. Abi: It was the department of
irrigation. The department was made responsiblefor providing irrigational facilities to
agriculture by cutting new canals andtheregular supply of water. 4. Khaki: The
department supervised agriculture, the erection of public buildingsinaddition to
attending to some household affairs.

 These departments were placed under a nobleman, but subsequently,

withtheappointment of Prime Minister, all these departments were entrusted his care.

 After Humayun, more departments were created and among them, the most important
were:

 1. The exchequer and revenue under the High Diwan or Diwan-i Ala.

 2. The Imperial Household under the High Steward or Khani Saman.

 3. The military pay and accounts office under the Imperial Bakshi.

 4. Canon Law, both Civil and Criminal, under the Chief Qazi.under the Chief Sadar.

 5. Religious endowments and charity

 6. Censorship of public morals under the Muhtasib.

 7. The Artillery under the Mir Atish or Darogha-i-Topkhana.

 8. Intelligence andposts under the Darogha of Dak-Chauki.

 9. Mint under a Daroga

Q.5:- ( c ) What are the shortcomings of Islamic criminal law?

 Now capital punishment could be inflicted on a Muslim on the evidence of a non-Muslim.

 In other cases, evidence of one Muslim was considered as equivalent to 2 non-Muslims.

 Evidence of two women was considered equivalent to that of one man.

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  Evidence Should be direct, that of I witness is only and not circumstantial and further specified
number of witnesses was necessary to secure conviction. For example, for proving the offence of
rape, not only eyewitnesses were necessary but also four such witnesses were required.

 For proving theft, evidence of two men or one Man and two women was necessary.

 For securing the sentence of Qisa Direct evidence of two competent eyewitnesses were
necessary.

 Evidence of woman was inadmissible to prove a charge of murder.

 Not all were equal in the eyes of law.

 For certain offences punishment was dependent on the social status of the accused.

 The principle of equity of justice was the given a go by.

 Further, it was left to the judge to determine the nature and gravity of the offence and the
punishment.

 Thus, The Muslim criminal law with these shortcomings had a few things to come in itself to the
public at large.

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 SHORT EXERCISE QUESTIONS:-

1. WHAT ARE THE SOURCES OF HINDU LAW?

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2. WHAT ARE SHRUTIS ?

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3. WHAT ARE SMRITIS?

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4. WHAT ARE DHARMASHASHTRA & DHARMASUTRA?

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5. HOW ARE Vedas SOURCE OF HINDU LAW?

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6. WRITE A FEW POINTS ABOUT MANU SMRITI.

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7. WRITE A FEW POINTS ABOUT YAJANVALYA SMRITI?

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 _____________________________________________________________________________________________________

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8. WRITE ABOUT NARAD SMRITI?

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9. WRITE ABOUT BRIHASPATI SMRITI.

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10. WHAT ARE CUSTOMS? WHAT ARE ESSENTIALS OF A VALID CUSTOM?

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11. WRITE THE STAGES OF LAW MAKING PROCESS IN ANCIENT INDIA.

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12. WHAT ARE THE SOURCES OF MUSLIM LAW?

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13. WRITE THE SALIENT FEATURES OF ISLAMIC CRIMINAL LAW?

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 14. WHAT IS LAW OF SUCCESSION IN ISLAMIC LAW?

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15. WHO ARE THE LEGAL HEIR IN MUSLIM LAW?

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16. WHAT IS HANAFI LAW SCHOOL?

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17. DRAW THE ADMINISTRATIVE DIVISION OF MEDIEVAL INDIA.( DELHI SULTANATE &

MUGHALS)

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18. WRITE 8 OFFICERS DURING MEDIEVAL INDIA?

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19. WRITE THE BASIC FEATURES OF ARTHSHASHTRA.

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20. WHAT IS THE IMPORTANCE OF ARTHSHASHTRA?

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 _____________________________________________________________________________________________________

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21. WHAT ARE THE TYPES OF IJMA?

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22. WHAT ARE TYPES OF SUNNAT?

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23. WRITE THE TYPES OF PUNISHMENT?

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24. WHAT ARE THE FORMS OF CRIME IN ISLAMIC LAW?

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25. WHAT ARE THE SHORTCOMINGS OF ISLAMIC CRIMINAL LAW?

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GLOSSARY:-

1. Remembrance – recall , thinking about and showing respect for somebody who is dead
2. Inheritance-is money or property which you receive from someone who has died ,
3. Assaults – physically attack , a sudden attack on somebody/something
4. Adultery – affair, sexual relations between a married person and someone other than the
spouse.
5. Metrical verses- poetry , interpretation- explanation , mortgages –plight ,promise,
6. Subordinative law - is a legal instrument that is created by an authority other than the supreme
authority that makes law.
7. Confers: grant , to discuss something with somebody before making a decision
8. Exhaustive treaties - specific subject, usually a legal topic;
9. Hypothecation- to believe especially on uncertain or tentative grounds ,
10. Pleadings evidence - include a statement of claim and a defense,
11. Counsel – advise
12. Forthright- saying exactly what you think in a clear and direct way,
13. Penal law - a law prescribing a penalty,
14. Imposing – inforce,
15. Excise – custom duty ,
16. Renowned – famous ,
17. Digests- different interpretations of the smritis are known as digestive,
18. Reduced – recoded ,
19. Evolved-develop ,
20. Tremendous- huge, great work ,
21. Astronomy - the scientific study of the sun, moon, stars, etc., consideration- deliberation,
cognizance- knowledge , awareness , unimpeachable – trustworthy, reliable ,
22. Well-versed- proficient ,
23. Assessors - monitor,
24. Fatwa - an official statement or order from an islamic religious leader ,
25. Apostasy -someone who has given up their religion ,
26. Heresy- belief that is different from what is generally accepted to be true ,
27. Wrongdoer - a person who behaves illegally ,
28. Kin - one's family and relations,
29. Immutable – firm ,
30. Banishment- the punishment of being sent away from a country or other place,
31. Reprimand- to tell somebody officially that he/she has done something wrong,
32. Infliction- the act of deliberately making somebody suffer something unpleasant,

33. Scripture- sacred text ,

34. Paramount – supreme ,

35. Fragmentary- broken ,

36. Consensus –agreement ,

37. Etymologically - origin and history of words

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