Week 6 - South Asian legal culture Flashcards
(26 cards)
The South Asian subcontinent was formerly known as the Indian Subcontinent. Why was the name changed?
This name no longer captures the immense variety within the region.
The subcontinent South Asia has countries that vary in terms of population. Categorize the countries in the following categories: large states, medium states, small states.
Large states: India, Pakistan and Bangladesh.
Medium states: Nepal and Sri Lanka.
Small states: Bhutan.
Shortly explain the constitutional stability of each country in the subcontinent South Asia.
India: one constitution through it’s post-colonial history. It is the largest democratic state in the world.
Pakistan: has faced interruptions by the military. Ideal candidate for the study of constitutional instability.
Bangladesh: one constitution in it’s history, but cited for relative constitutional instability due to chronic political instability.
Sri Lanka: oscillations (schommelingen) between a elitist conception of democracy and a more democratic-social state.
Bhutan: fundamental charter was relatively recently approved, which was a result of a long and peaceful process of democratisation.
Nepal: democracy is an achievement of far greater political instability.
What is a key feature of South Asian legal culture?
South Asian legal culture focuses on finding stability in an environment with ‘high degree of cultural, ethnic, religious, social, and linguistic diversity’.
How can Hinduism be seen in the Indian legal system?
Indian society, in its values and social structure, remains deeply influenced by Hinduism, and that many problems in Indian legal life can be explained precisely in terms of these traditional ideas.
What area of Indian law is still governed by Hindu law?
Family law is the only area of Indian law that is still governed by Hindu law.
How does Hinduism view the separation between law, religion, and society?
Hinduism, unlike many western legal systems, does not clearly separate legal, religious, and social rules—they are all part of the concept of dharma. Dharma essentially dictates how a person behaves and should behave.
What are vedas and smritis?
These are the foundational text for the concept op dharma.
Vedas are the oldest scriptures of hinduism, and are believed to be revelations passed down to wise men rather than human-authored texts. These contain primarily philosophical and spiritual teachings.
Smritis are considered to be work of humans, and provide detailed guidance on ethical and legal principles.
One of the notable characteristics of Hindu law, is its inherent inequalities. How can we see this?
This can be seen in the caste system. Caste distinction refers to India’s traditional social hierarchy, dividing people into hereditary groups based on birth and occupation. There are four castes: priests, warriors, peasants and merchants, servants and craftsmen.
Also, in India we also see that woman are subjected to clear disparities compared to men.
Why does it matter to which caste people are assigned?
For each caste, there are completely independent religious duties. This generally increases in strictness as one moves up in Indian society.
Since the 17th century, the significance of Hindu law had declined in India. Why has this happened? In what way do we still see Hindu law in India today?
The significance of Hindu law has declined, because of the English intervention.
Hindu law in modern India only survives as a personal statue for matters of family and inheritance law.
Hindu laws greatest impact on modern Indian society is perhaps outside of the realm of law.
Why does English law have such a big influence in South Asia?
Since the 17th century, English law has had growing influence in South Asia. In the 19th century, the British government even took control of India.
British colonialism fundamentally reshaped the legal landscape of South Asia.
Later in the 19th century, Indian law started expanding. It was largely inspired by English principles. The new statutes marked a departure from traditional Hindu concepts.
Following the decolonization, India and Pakistan separated. This led to a lot of people having to be forced to move and a lot of deaths. In South Asia, is there a significant influence of common law or civil law?
The common law system was inherited from British colonialism. It exerted a significant influence on the legal framework of Pakistan and India, the newly independent nations, by shaping their judicial systems, legal principles and procedural norms.
India became independent in 1947. Did their independence bring a lot of changes to the common law system?
India’s independence saw almost no changes to the common law system.
The laws themselves had big resemblance with English laws. Often they were written in English.
In what other ways do we see that there are still big similarities between Indian law and English law?
This can be seen on a lot of levels, for instance:
1. The systems employ similar legal terminology en basic legal concepts;
2. The binding force of precedent is recognised in both systems;
3. Importance of procedural law is big in both systems;
4. Both Indian and English law has a cautious approach to statutory texts.
The active and wide-ranging role of the Supreme Court of India is one reason why India is seen as a legally advanced country with a strong and independent judiciary. As a result, there is a complex relationship between the Supreme Court and the Parliament. Why is this?
The Supreme Court of India has the power of judicial review. It can interprets the Constitution and has the power of judicial review (can strike down laws that violate the Constitution). Because of this, conflicts between the Supreme Court of India and the parliament happen every now and again.
The Supreme Court of India enjoys enormous power because of Article 142 of the Indian Constitution. What does this article state?
This article states that the Supreme Court has the exceptional authority to ensure justice is not limited by procedural or statutory constraints. It has become a cornerstone of judicial creativity and activism in India, allowing the Court to address urgent social issues even in the absence of legislative action. However, this power also contributes to institutional tension with Parliament, especially when law-making authority appears to shift from elected representatives to unelected judges.
There are some difficulties associated with the modern Indian law. One of them, is the caste system. How does the caste system leed to problems in India?
Despite legal efforts to address is, the caste system still leeds to discrimination and societal inequalities.
Another issue with the modern Indian law, is that, in some cases, a big part of the Indian people don’t obey to the law. Give two examples of this.
- Prohibition of polygamy in the Hindu Marriage Act. It doesn’t apply on Indian muslims, leading to inequality. More importantly, studies point out that polygamy continues to be practiced in everyday life.
- Law concerning the minimum age of marriage. A big part of the Indian people get married before the are legally allowed to.
In response to the inequalities in Indian society, both legislation and court decisions have been instrumental in attempting to address the disparities. A significant step in the right direction, is the addition of article 39A in the Indian Constitution. What does this article state?
Article 39A of the Indian Constitution prescribes public legal aid as a fundamental state principle which the state must realise by means of legislation and other methods.
What has the state done to facilitate social justice on a procedural level in private law cases?
The state had provided free alternative dispute resolution mechanisms, also know as lok adalat.
Another response to the inequalities in Indian society is the institution of public interest litigation, developed by the Supreme Court. What is public interest litigation?
Public interest litigation enables concerned citizens and human rights organizations to take legal action on behalf of marginalized communities, ensuring that their voices are heard and their interests are protected.
Public interest litigation plays a vital role in advancing social justice by empowering individuals and groups who may lack resources to defend themselves effectively.
To enhance access and reduce procedural hurdles, considerable efforts have bee made in India to simplify legal procedures. Name two of these:
- Allowing a simple letter to initiate a case.
- Relieving plaintiffs of the burden securing evidence on their own. The court can implement a commission or rely on existing institutions which will then begin searching for evidence. This is also called investigate litigation.
How has public interest litigation played an important role in promoting social justice and upholding fundamental rights in India?
Public interest litigation had been instrumental in combating a wide range of injustices, such as police torture, child labour or discrimination against women. Through public interest litigation, concerned individuals have been able to bring attention to systematic abuses and advocate for reforms to protect the rights and dignity of marginalized communities
