Lecture 6 | South Asian Legal Culture

Question 1

what does the legal culture and stability in South Asia mean?

Answer 1

• Recognition of diversity: they emphasize recognition and integration of their diverse cultural, ethnic and religious identities in their constitutional frameworks.
• Avoiding European templates: they found that acknowledging and valuing diversity helps in softening conflicts and encouraging state stability.
• This contrasts with Europe, which the systems are stabil. South Asia many countries are transitioning and their systems are designed to adapt more to changes.
• Constitutional adaptability: their constitutions are designed to be adaptable, adapting to the changing needs and challenges presented by their diverse societies.

Question 2

which religion plays a rol ini the indian legal system?

Answer 2

• Hindu influence: Hinduism has a significant influence on many aspects of Indian life, especially in family law matters.

Question 3

What is the underlying principle of the indian legal system?

Answer 3

Dharma: the underlying principle:  it is the underlying, most significant, principle in Hindu and is meant to guide all individual behaviour and maintain societal harmony

Question 4

What are the sources of Hindu law?

Answer 4

• Primary texts: The Vedas (Shruti) and Smritis.
• Supplementary texts: commentaries on Smritis, legal treatises and customary laws (Sadachar).
  The Vedas (Shruti):  the most important source in Hindu law. It is divinely revealed (out of this world authority, think about the Bijbel). Mainly general principles
  The Smritis:  work of human. More specific: rules on different societal and family issues.
• Includes texts like:
  1) The Dharmasutras: more practical instructions on societal and religion contexts.
  2) The Dharmasastras: more legal matters.

Question 5

What does the Caste System mean?

Answer 5

The caste system roots are in the Vedas, which prescribed a hierarchical social structure divided into four main varnas. Caste system origin in Hindu law, people divided in classes. All of the people have special rights, priviliges and duties. Nowadays, according to Indian Constitution discrimination is not allowed but it is very influencial.

Question 6

What did the colonialism of the British lead to in India?

Answer 6

at first they did not want to imply their laws directly in India, but after the Indian Rebellion they wanted more control of the society. So they implemented more British laws to take control. This had westernization and secularization as a result.

Question 7

What happened after decolonization of India from British?

Answer 7

• British common law system still influences the legal frameworks of India and Pakistan.
• Criticism: it has disrupted legal traditions and has contributed to long-term societal divisions, notably in terms of caste, religion and ethnicity.

Question 8

What retained in India of common law principles? Modern Indian law

Answer 8

• India retained the common law system established during British rule, maintaining continuity in legal processes and judicial structure.
• Legal language and structure: Indian laws are often drafted in English
• Precedent and legal terminology: the Indian legal system upholds the doctrine of precedent, where rulings by higher courts bind lower courts.
• Foreign References in Court: indian courts frequently reference judgments from other common law jurisdictions, particularly the UK

Question 9

what are the difficulties associated with modern indian law?

Answer 9

inefficiency (wait really long in court), economic barriers (very hard for people from lower classes to go to court  disproportions to the economic aspect), case system and discrimination

Question 10

Role of the Supreme Court of India has a crucial role in the Indian legal system as an appellate body and a significant influencer in law-making  line between parliament and court is really blurred here.
what is the criticism about this?

Answer 10

• The extensive powers of the Supreme Court may lead to judicial overreach: the court may step into domains traditionally reserved for legislative or executive branch.
• The Indian legal system faces challenges such as legal accessibility and efficiency for the underprivileged and delays (vertragingen) in the judicial process.

Question 11

What are measures to overcome the difficulties in modern indian law?

Answer 11

• Public Interest Litigation (PIL): the Supreme Court lets people or human rights organizations go to court to help others, especially poor or weak people, this makes sure their problems are heard, and their rights are protected.
• Alternative Dispute Resolution (ADR): the government gives free help, like lok adalats, to solve problems without going to court, it’s cheap and easy for everyone.  this is for private, civil law cases. Not for criminal matters. This is a way to take some of the burden from the real courts.