When it comes to the world, there are basically four kinds of legal system that exist: civil law, common law, statutory law, and religious law. For the uninitiated, (a) civil law is actually based on the comprehensively “written” laws of the land; (b) common law on the other hand is based on uncodified laws, where the unmodified laws have to be interpreted by the judiciary keeping in view the Principles of Natural Justice and Equity; (c) Statutory laws are based on statutes and ordinances that are passed by the legislature; and (d) Religious laws are derived from particular religions — the holy texts, scriptures, and their interpretation.
Thus, while the genesis of codified laws (i.e. Civil law) can be seen in the ‘Hammurabi code’ or even the Manu Smriti, which is why Civil Law is often seen to have a Roman descent where laws are comprehensively written down and must be followed to their letter. Common law, on the other hand is a legal system with British origin that has now developed organically into its current form. [Note: Thus, Civil laws keep getting modified and amended; while on the other hand, in case of common law, even if a specific code does not exist or a specific provision does not exist in the codified law, the Superior Courts are free to interpret the provisions or to even take decisions in the absence of a specific code for the specific purpose. This is why legal precedents become so important in the case of common law!]
Of course, for all practical purposes, several countries across the world have adopted some sort of permutations and combinations of two or more of these legal systems. Then again…what shapes a country’s legal system is, of course, its own unique history, which is why when it comes to India, we actually follow a hybrid legal system. (Then again, I’m sure there are no surprises there!)
In fact, the Indian legal system itself is a hybrid system. While India itself is based on the English Common Law, there are certain regions (such as Goa, Daman & Diu, and Dadra and Nagar Haveli), which actually follow the Portuguese Civil Law. More importantly, personal laws in our country are based on Religious Laws.
In fact, given our ethnic and religious diversity, one can only imagine the great complexity that arises in view of these myriad personal laws. Not to mention, they also pose another paradox!
Given the premise that the Indian Constitution bestows equal rights upon every citizen, these personal laws actually go against this ingrained principle of equality that was enshrined as a basic right in our Constitution.
This is why it is important for India to clearly re-think its entire approach to its legal framework. It cannot follow civil law in certain states and common law in the rest of the country. Of course, the legislature took its first step last year when it replaced the Portuguese Civil Law Code in Goa…but there is much that needs to be done.
Think about it: How can we think about ‘One Nation, One Law’ when we don’t even have a single unified legal system in the entire country. Not to mention: if laws in our country exist in their hybrid forms, where is the ‘equality’ that the Constitution guaranteed to all its citizens?!? Now that’s something we all must think about!!!
