The Common Law in India - College of Social Sciences and ...

The Rise of the Common Law 45as its Chief Justice. So powerful, however, was thetradition of independence inherited by the professionof the law, which in early days consisted mainly ofmembers of the English Bar, that the superior judiciarymaintained its complete independence from the executiveeven though a part of it was recruited fromthe civil service. Nothing that the British did inIndia is cherished more than the system of administrationof justice under an independent judiciary whichthey erected. We shall have occasion to show laterhow these English traditions now find a place in theConstitution of India which has created an integratedand autonomous judicial system and provided avirtually irremovable judiciary.The adversary system of trialThis established feature of the common law soontook root in India. Let us not forget that amongthe persons who participated in the ceremonial of theopening of the first Court of Judicature at Bombaywere " The fower Atturneys or Common pleaders onfoot." The system was not known in India. In theHindu or the Mahomedan system the judge took anactive role in eliciting the truth as in the Continentalsystems. The theory of the common law " that justicecan best be achieved by giving each party the fullestopportunity to present his own case " was broughtinto vogue in India by the English. The Civil andCriminal Procedure Codes of India and the law ofevidence enacted in the latter half of the nineteenthcentury are in conformity with this common law