A democracy consisting of more than a billion people, hundreds of ethnic groups and tribes, fifteen official languages and multiple religions must have a legal code, to maintain a stable society, right? And so, India has a rather unique legal and law enforcement system.
The Legal Systems
Nyay Panchayat (Council of Justice)
The earliest version of an official justice system in India was - and still is - the Nyay Panchayat. It's a board of five people, administering the law. These bodies usually consisted of village elders, who arbitrated disputes and dealt with most petty crimes. The Khap Panchayat consisted mostly of higher caste elders, who strictly enforced India's rigid caste system. In ancient and medieval times, settlements as large as cities were normally administered by Kings themselves, or local administrators (usually their sons and daughters) to whom Kings delegated authority. This left the Panchayats to administer the law in smaller settlements.
When India won its independence from British colonial rule, Mahatma Gandhi, the man who led the struggle, advocated the reestablishment of the Panchayats in India's villages - albeit with members now elected rather than appointed. The official Nyay Panchayat functions much like a small claims court, which also handles petty misdemeanours. By law, the modern day Panchayats are barred from adjudicating serious felonies. However, caste based Khap Panchayats still function unofficially, and use extrajudicial means to enforce the old caste system - in direct contravention of modern Indian law, that bans caste based discrimination. The Khap Panchayats are therefore a controversial subject.
Qazis and Kotwals (Magistrates and Constables)
The first version of a modern day justice system in India was established by the Afghani Sultans who controlled Northern and Central India in the five centuries before the British showed up. While soldiers had been used to enforce laws since antiquity, it was the Delhi Sultans and the Mughals who designated some soldiers called Kotwals (Constables). They weren't just soldiers who enforced laws as needed, they were full time policemen who didn't go off to fight military conflicts.
Criminals when caught were often hauled before designated judges called Qazis (Magistrates). The Qazis were appointed either directly by the Kings, or if the kingdom got big enough, by Wazirs (Ministers). As in ancient times, violent crimes were often punishable by death, while smaller crimes were dealt with by corporal punishment and financial restitution. Prison cells in the palaces were reserved only for political prisoners, such as Royal family members or ministers out of favour with the King.
Civil matters were arbitrated by a different kind of judge called Munsifs (Arbitrators). This was the first time that criminal law and civil law was dealt with separately in the subcontinent. Munsifs acted more like arbitrators (hence their name) rather than Judges, as the concept of "lawyers" representing clients hadn't been formed yet. These Munsifs still exist in the modern day as arbitrators and small claims court judges in bigger cities and towns where Panchayats cannot be formed.
- The first inklings of a modern legal code were laid down by The British East India Company, specifically by Lord Charles Cornwallis (yes, that one). This was because the Company had gained a large number of suzerainties as opposed to simply being protectorates. They therefore implemented a common legal code for all their territories, based on The Common Law, but with modifications intended to enrich Company men to the largest extent possible.
- For the first time ever, people were bound to a strip of land, and were obligated to pay taxes regardless of what they were able to produce, where previously, Indian farmers simply migrated to other fertile lands when a piece of land became barren, and paid the taxes to whoever was ruling over that territory at that time. Although this didn't make much economic sense by forcing people to pay taxes with income they just didn't have, it set those people up for indentured servitude, which was extremely valuable for the Company. This practice of "bonded labour" serfdom would exist until India gained its independence.
- Another important law that came about at this time, was the banning of Sati - a practice in which recently widowed women were burnt along with their departed husband in the funeral pyre note . However, the practice of Dowry, which had been brought over by the Muslim invaders, was allowed to exist note . While completely illegal in the present day, isolated incidents of both continue to crop up, much to the displeasure of the Government.
- Although the pioneers in abolishing sati were actually the Portuguese under Afonso de Albuquerque, in 1514, an event not much remembered today.
- India's present day legal system is, for all practical purposes, a duplicate of British Courts, and The Common Law is applicable in all cases except those dealing with religious or personal casesnote , so if you're familiar with the British (or even American) court systems, you'll have a fairly good grasp of how Indian Courts work.
- Goa bases its personal law on the (1867) Portuguese Civil Code (that was repealed in Portugal in 1966) instead of applying a religion-based personal law.
- You've got the Supreme Court of India right up top, with one Chief Justice and twenty five other judges, all selected from the Judicial College. However, unlike in the United States, the Chief Justice and the twenty five Judges can only hold the position until the age of sixty five, after which they must retire - this restriction applies to all Judges, so there are no lifetime seats.
- The selection is also mostly apolitical, since the Judicial College is independent from the ruling dispensation and may nominate any one of their members for the Collegium of Judges, who are then appointed by the President of India.
- Below the Supreme Court, you have the High Courts, one per state of India's States and Union Territories. The High Court Judges are also part of the Judicial College, and are appointed to their positions by the State or Territorial Governors. Unlike in the United States, there are no circuit judges - all High Court Justices have full jurisdiction over their State or Territory and nothing else.
- Below the High Courts, you have three systems -
- The District Courts, who deal with mostly civil cases (which is to say, the bulk of the casework). These go down all the way to the Nyay Panchayats spoken of earlier, as well as Lok Adalats (Assembly of the People), who are one step above them.
- The Sessions/Criminal Courts, who deal with serious crimes (such as murder, assault or terrorism). These go down all the way to Magistrates - III Class, who deal with petty offences and minor misdemeanours.
- The Revenue Courts, who deal with taxation and financial offences. These go down all the way to Assistant Tehsildars and Tehsildars (think Deputies and Sheriffs in the United States) and are a separate Judicial Stream in most cases, the casework being the purview of the Department of Revenue rather than the Ordinary Judicial System.
- India does not have a Jury system, after a particularly bizarre case (Nanavati vs. The State of Maharashtra
) which made the Government of India abolish Jury Trials. The reasoning being that since most of India's population is so diverse (confessionally and culturally) a Jury would almost never be unbiased or neutral, and therefore unlikely to adhere to the principles of justice. It remains a contentious decision, but almost no one wants to bring it back, since the original reasoning did (and does) have a point, regionalism being a significant thing in India.
- Unlike the US which has state laws and federal laws and splits them into separate jurisdictions, India has one unified criminal code known as the Indian Penal Code or IPC. Many laws codified into the IPC are unchanged from laws established during the colonial period.
- When India gained independence, the leaders had to design a legal code that accounted for the sheer amount of cultural diversity that exists in India, and they found that British laws that weren’t overtly discriminatory did fit the role best. Many of these laws are based on The Common Law including some archaic Victorian era laws against Homosexuality and other "Morality" laws. Those laws are slowly being repealed - Homosexuality was finally decriminalised in 2018, and laws dealing with Adultery and Divorce were changed to no-fault systems similar to that of the United States from 2011 onwards.
- The creation of new laws is, of course, the privilege of the Executive Branch, but much like in Britain, the actual contours of those laws are entirely the prerogative of the Courts. So there's quite a few Common Law Offences that just aren't present in the IPC, but with precedent holding them up anyway.
- The Criminal Procedures Code (CrPC) deals with Criminal Law procedure. It is applicable across the entirety of India except Jammu and Kashmir, where a special case known as Article 370 (think Diplock Courts in Northern Ireland) is imposed, which is contentious to say the least. It sets out the jurisdictions of the Court System as well as appropriate punishments, as well as the procedures to be followed for Appeals.
- The concept of Bail as it is understood in the United States does not apply in India. However, it is possible for Bail to be posted, but this is uncommon enough that it invites notice. Most offences are non-Bailable, but the precise charges for which they are posted falls under the discretion of the Central and State Governments, who can modify them as they see fit.
- The Death Penalty in India is only applied "In the Rarest of the Rare Cases". Which is to say, it's only passed down for Terrorism or particularly horrific crimes, such as gratuitous violence and sadism, rape, mass-murder or Treason - and usually for convicts who show no remorse. The most infamous recent sentence was for one Ajmal Kasab, a Pakistani National who was responsible for several acts of mass-murder and terrorism in Mumbai on the 26th of November 2008, and who was executed in the Yerwada Jail on the 21st of November 2012. The most recent execution was that of Yakub Memon, a terrorist responsible for the gruesome 1993 Mumbai Bombings, who was executed on the 20th of July 2015 in the Nagpur Central Jail.
- A lot of prisons in India were built during British colonial times. Before that, political prisoners were kept in various palace dungeons, while petty criminals were often subjected to corporal punishment, financial penalties or execution.
- It was the ultimately the British Empire which introduced the concept of a penitentiary where criminals could be punished and/or reformed. They focused more on the punishment bit, in line with the usual dog-kicking and puppy-punting colonial rule pretty much common across the world.
- The most infamous colonial prison was the Cellular Jail in Port Blair on the Andaman Islands. It was a particularly brutal prison, only reserved for the most troublesome agitators for freedom. So-called because each cell was effectively isolated - the guards could see the prisoner all the time, but the prisoner saw no one and was effectively isolated, to break their spirit. And that's not even going into the brutality of the wardens themselves. These days, it's a monument to the Freedom Struggle.
- A lot of prisons were constructed post-independence, and in recent times most focus more on the rehabilitation bit rather than punishment. The most successful example is the Tihar Jail - once infamous for it's horrific conditions and brutality, it's now improved considerably, with the inmates being trained to re-enter civilized society once their sentence ends. The low recidivism of the prison prompted similar reforms across India, with varying levels of success.
- Unlike elsewhere, Prisons and Correctional Facilities are purely government-controlled, so all the staff are government servants. Prison labour is common, but restricted unless specifically ruled by the Courts. Much like other prisons, however, terrorists, traitors, sex-offenders and pedophiles are kept separate and isolated from the rest of the inmates, due to the unfortunate tendency of prisoners to carve them up the moment they get a chance, since Even Evil Has Standards, even in Indian prisons.
- Regular policemen and police officers also staff prisons - dedicated prison guards are uncommon save for Maximum Security Prisons. Therefore, it is possible for a policeman to get a rotation as a prison guard. You will therefore not find the Sadistic Warden in Indian movies involving prisons - the "Warden" equivalent is mostly a Police officer just doing their job - an unpleasant but necessary one.
- India has relatively low-rates of incarceration (about 400,000 or so, all told) but a substantial number of them are undertrials rather than convicts. The painfully lethargic court system means that a lot of people in jail are there without proof of guilt. To ameliorate this somewhat, the Court sentence passed is considered coterminous with the time spent in the Big House - so if a sentence was passed for three years and the prisoner has already spent two, they only need to spend the balance in jail before being released. And if the sentence is shorter than the time incarcerated, the prisoner is released without further ado. In cases of unjust imprisonment, it is possible (though very difficult) to claim some compensation for the miscarriage of justice involved. Overcrowding has only recently become a a problem, and poor sanitation is also a issue in several correctional facilities, though efforts have (and are) being made to rectify the problem - inefficient administration is usually the problem in most cases.
