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116 The Common Law in IndiaThe State is thus not liable in tort in India foran act of State. The law in England and the UnitedStates would seem to be disinclined to recognise theexistence of an indefinite class of acts concerningmatters of high policy or public security which maybe left to the uncontrolled discretion of the Governmentand kept outside the jurisdiction of the courts.The question of the liability of the State in tortwas recently taken up for consideration by the LawCommission of India. It considered the existing lawin India and the law in England and other countrieson the subject. The view that it formed was thatthough the Crown Proceedings Act in England wasmore liberal in its provisions than the legislation inthe United States its scope in respect of statutoryduties and powers was very restricted. The Commissionhas recommended legislation in India making theState liable in tort in a number of specified mattersand imposing liability on a much wider scale thanunder the Crown Proceedings Act in England.We have passed in brief survey the series of theimportant Anglo-Indian Codes through the media ofwhich large sectors of the English common and statutelaw have infiltrated into India and established themselvesas the core of the Indian statutes. We hadalso a view of the Indian law in an area not coveredby a Code such as that of civil wrongs. Here theEnglish common and statute law holds the field evenin a greater degree.Adjective law in India owes almost as much toEnglish law as India's substantive law.The law of evidence found scattered in the English
Civil Law 117textbooks was codified in India in the year 1872.Mr. Stephen (later Sir James Stephen) in presentingthe report of the Select Committee on the Bill claimedthat it would be found to embrace arranged in theirnatural order the subjects treated by English textwriters and judges under the general head of the" Law of Evidence." 25 The law of evidence wascodified in India on the basis of the English lawkeeping in view as in the case of the other Codesthe differences between the English practice mouldedby English social conditions and procedures and theconditions then obtaining in India.The codification of the procedure of the civil courtsof the whole country was first made by the CivilProcedure Code of 1859. This was followed by successiveCodes and eventually came the Civil ProcedureCode of 1908 which now regulates proceedings in civilcourts. The chief feature of the Code of 1908 is itsdivision into two parts on the lines of the JudicatureActs and the rules of the Supreme Court framed underthese Acts. Here again we have a procedural systemwhich broadly follows the base of English proceduremodifying it to suit Indian conditions.To sum up, the base and the foundation of thecivil law of India is English common and statutelaw. But the structure reared on that foundation hasbeen so adapted to Indian needs and conditions thatit may, notwithstanding its exotic origin, be regardedas peculiarly Indian in its form as well as in itsworking.25 Sir J. Woodroffe, Law of Evidence, 9th ed., p. 1109.
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THE HAMLYN LECTURESTWELFTH SERIESTH
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The Common Lawin IndiaBYM. C. SETAL
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CONTENTSThe Hamlyn Trust - - - - -
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THE HAMLYN TRUSTTHE Hamlyn Trust ca
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CHAPTER 1THE RISE OF THE COMMON LAW
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The Rise of the Common Law 3mixed u
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The Rise of the Common Law 5In orde
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The Rise of the Common Law 7and Cou
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The Rise of the Common Law 9observe
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The Rise of the Common Law 11Thus w
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The Rise of the Common Law 13the ch
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The Rise of the Common Law 15includ
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The Rise of the Common Law 17from t
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The Rise of the Common Law 19Suprem
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The Rise of the Common Law 21prefer
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The Rise of the Common Law 28made a
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The Rise of the Common Law 25In the
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The Rise of the Common Law 27one to
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The Rise of the Common Law 29the ru
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The Rise of the Common Law 81Later
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The Rise of the Common Law 33The fi
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The Rise of the Common Law 351872 o
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The Rise of the Common Law 37crimin
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The Rise of the Common Law 89requir
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The Rise of the Common Law 41King's
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The Rise of the Common Law 48steps
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The Rise of the Common Law 45as its
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The Rise of the Common Law 47The sy
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The Rise of the Common Law 49Suprem
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The Rise of the Common Law 51arbitr
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The Rise of the Common Law 53has be
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The Rise of the Common Law 55As ear
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The Rise of the Common Law 57by equ
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The Rise of the Common Law 59with c
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The Rise of the Common Law 61princi
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CHAPTER 2CIVIL LAWTHE first Law Com
Page 77 and 78: Civil Law 65country of the parties
Page 79 and 80: Civil Law 67be made by a will execu
Page 81 and 82: Civil Law 69advancement based on En
Page 83 and 84: Civil Law 71as to accommodate it to
Page 85 and 86: Civil Law 73to contracts." The cour
Page 87 and 88: Civil Law 75Consideration may under
Page 89 and 90: Civil Law 77similar to those of the
Page 91 and 92: Civil Law 791845" did not, however,
Page 93 and 94: Civil Law 81in the same case that '
Page 95 and 96: Civil Law 83a mistake of fact but a
Page 97 and 98: Civil Law 85could not prevent, unla
Page 99 and 100: Civil Law 87and also a provision to
Page 101 and 102: Civil Law 89Act. 57 Speaking of the
Page 103 and 104: Civil Law 91the legal relations of
Page 105 and 106: Civil Law 93the non-performance of
Page 107 and 108: Civil Law 95purchaser who is suing,
Page 109 and 110: Civil Law 97system on which the Act
Page 111 and 112: Civil Law 99Some of the provisions
Page 113 and 114: Civil Law 101The justification for
Page 115 and 116: Civil Law 108On the contrary, as we
Page 117 and 118: Civil Law 105to the contrary as ins
Page 119 and 120: Civil Law 107patents, copyright, bi
Page 121 and 122: Civil Law 109from the social duties
Page 123 and 124: Civil Law 111early as 1872 that in
Page 125 and 126: Civil Law 113in India. 16 However,
Page 127: Civil Law 115Dealing with the quest
Page 131 and 132: Criminal Law 119criminal law were b
Page 133 and 134: Criminal Law 121powers; though the
Page 135 and 136: Criminal Law 123legal member, full
Page 137 and 138: Criminal Law 125" It is working as
Page 139 and 140: Criminal Law 127law. Stephen though
Page 141 and 142: Criminal Law 129proposed that truth
Page 143 and 144: Criminal Law 131calendar of crimes
Page 145 and 146: Criminal Law 133religious life of I
Page 147 and 148: Criminal Law 135have also in the In
Page 149 and 150: Criminal Law 137a special meaning.
Page 151 and 152: Criminal Law 139I think, depend upo
Page 153 and 154: Criminal Law 141at a conclusion whe
Page 155 and 156: Criminal Law 143and coercion. Some,
Page 157 and 158: Criminal Law 145Infancy: Moral deli
Page 159 and 160: Criminal Law 147It was laid down in
Page 161 and 162: Criminal Law 149provides expressly
Page 163 and 164: Criminal Law 151her husband who is
Page 165 and 166: Criminal Law 153by the ancient rule
Page 167 and 168: Criminal Law 155In India it is prov
Page 169 and 170: Criminal Law 157fall in Indian law
Page 171 and 172: Criminal Law 159wages war against t
Page 173 and 174: Criminal Law 161in the Indian Code.
Page 175 and 176: Criminal Law 163Large powers have b
Page 177 and 178: Criminal Law 165of certain offences
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Criminal Law 167as in England but t
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The Indian Constitution 169time to
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The Indian Constitution 171forces i
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The Indian Constitution 173the gene
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The Indian Constitution 175the cour
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The Indian Constitution 177Bills to
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The Indian Constitution 179head and
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The Indian Constitution 181of its c
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The Indian Constitution 183This vit
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The Indian Constitution 185authorit
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The Indian Constitution 187The comm
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The Indian Constitution 189of the p
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The Indian Constitution 191came int
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The Indian Constitution 193function
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The Indian Constitution 195rendered
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The Indian Constitution 197remedies
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The Indian Constitution 199India ha
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The Indian Constitution 201establis
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The Indian Constitution 203expressi
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The Indian Constitution 205It is st
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The Indian Constitution 207in Engla
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The Indian Constitution 209it means
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The Indian Constitution 211otherwis
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The Indian Constitution 213to prote
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The Indian Constitution 215use, enj
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The Indian Constitution 217natural
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The Indian Constitution 219health a
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The Indian Constitution 221are not
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The Indian Constitution 223In its p
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Epilogue 225exactly for the same re
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Epilogue 227it, and professors medi
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