Civil Law in India
Civil Law in India
1969
Part of the Civil Law Commons, Comparative and Foreign Law Commons, and the Legal Education
Commons
Recommended Citation
K. M. Sharma, Civil Law in India, 1969 WASH. U. L. Q. 1 (1969).
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WAS4INGTON UNIVERSITY
LAW QUARTERLY
Volume 1969 Winter 1969 Number 1
K. M. SHARMA*
I. INTRODUCTION
f The author desires to acknowledge the guidance of Professors Arthur Taylor von
Mehren and Jerome A. Cohen in the preparation of this article.
0 B.A., 1959 (Rajasthan), MA., 1961 (Rajasthan), LL.B., 1963 (Rajasthan), LL.AI, 1965
(Rajasthan); Assistant Editor, Journal of The Indian Law Institute, New Delhi, India
(1965-67); LL.M., 1968 (Harvard); S.J.D. Candidate (Harvard).
1. The Law Commission found it too late to shift to some of the continental institu-
tions to avoid some procedural delays. LAw COMI'N OF INOA, REP. No. 14, RFoRm OF
JUDICIAL ADMIISTATION 677-94 (1958). However, under the Village Panchayat Acts of
various states, enacted in pursuance of the directive prindple of the Constitution, the
dispute-solving organ of the panchayat (nyaya panchayat) is free from the rule of the
"bindingness" of precedents and normally does not permit the parties to be represented
by lawyers. It can seek their assistance as non-partisan lawyers only. These departures
from the common law practice partake of some of the attributes of the continental
system.
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CIVIL LAW IN INDIA
but will also enrich his understanding of the common law itself. The
importance of the historical events of the annexation of former Portu-
guese and French possessions into the Union of India, and the fact
that civilian thinking was not too infrequently utilized by judges and
lawyers in British India, are demonstrative of the need for the com-
parative scholar to appreciate the relevance of the infusion of civil law
elements into the Indian legal system.
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26. Letter from Sir William Jones to Lord Marquis Cornwallis, March 19, 1788, quoted
in I H. CoLEnaooda, DIGEST OF HINDU LAW vi-vii (4th ed. 1874).
27. For a critique of Sir Jones' comparison of Hindu law and Roman law, see Venkata-
subrahmanya Aiyar, Three Pioneers in the British Evolution of Hindu Law, 80 MADPAs
L.J. 122, 123-24 (1914).
28. See letter, from Henry Colebrooke to his father, Oct. 22, 1805:
Apropos of English law, I must defend my commissioning the continuation of the
statutes at large.... [AII British subjects residing out of Calcutta are amenable to
the Courts subordinate to mine ... ; that all other Europeans, and descendants of
Europeans, are wholly amenable to our Courts ... ; and, in short, that we have to
administer English, French, and Dutch Law, as well as Hindu and Mohammedan;
you will not be surprised that I am provided with books of reference in the English
and Civil Law. I think you would not object to the commission in question, if you
saw my law library, containing a motely collection, from the Corpus Juris to the
attorney's vade mecum.
T. CoLmRooKF, Tim LIFE OF H. T. CoIEBRooKu 223 (1873). As judge of the Bengal Sudder
Diwani Adalat for several years from 1801, and as trusted adviser of judges and officials
in other provinces, notably of Sir Thomas Strange, Chief Justice of the Madras Supreme
Court, Colebrooke had various opportunities to influence the development of Hindu
law in its day-to-day administration.
29. id. at 315: "He . . . compressed into the space of 250 closely printed pages an
elaborate compendium of legal principles derived chiefly from the Roman jurisprudence
.... " See also G. RANKIN, supra note 21, at 89.
doubtful that the Treatise made any noticeable impact in the popular-
ization of civil law.30
C. Justice, Equity and Good Conscience
The principles of English law infiltrated the jurisprudence adminis-
tered by the courts in the guise of rules of "justice, equity and good
conscience." 3 1 But the predominantly held assumption that these prin-
ciples were interpreted to mean only the rules of English law found
reasonably applicable to Indian society and circumstances8 2 is an over-
statement. Without underrating the great role of common law in India,
it must be noted that courts did refer to Roman law and the writings
of French, Dutch and German civilians in order to fill interspaces and
harmonize differences, as well as to develop the law as a system of gen-
eral principles.33 An exploration8 4 of the judgments of the Bombay,85
30. The absence of comparative lawyers was the reason of this neglect. Otherwise, the
law of contract might have reflected some Romanist ideas instead of English legal ideas
exclusively. Cf. 1 R. WEST & J. Bumaa, HINDU LAw vii (1884): "[L]arge number of com-
parisons .. .between the Hindu law and the Roman, English, and other laws ....
[have been made] partly to show that the Hindu system stands much less isolated than
is usually supposed, but more especially to awaken the interest of Native scholars if
possible in the subject of comparative law." (Emphasis added.) For comparisons with
French law see id. at 204, 597, 771. See also G. SAREAR, HINDU LAw 148, 159, 489 (8th ed.
1940); C. SASTRI, FICTIONS IN THE DEVELOPMENT OF HINDU LAW TExTS passim (1926) for a
comparative and critical study of the Roman, Hindu and English law; F.R.V., HINDU LAW
IN BOMBAY 17 et seq. (1892).
31. See generally M. JAI, supra note 2, at 576-90.
32. Per Lord Hobhouse in Waghela Rajsanji v. Shekh Masuldin, 14 I.A. 89, 96 (1887).
M. SETVAvAD, supra note 4, at 23; M. SETALvAU, THE ROLE OF ENGLISH LAw IN INDIA 11, 12,
13 (1966).
33. A marked influence of continental law is discernible in the law relating to riparian
rights. See T. GHOsE, THE LAW OF ALLUviON AND DILuviON (2 vols. 1920). As far back as
1881, J. H. Nelson invited attention to the complex provisions of the French Code deal-
ing with the rights and duties of the Family Council:
In England the individual is everything, the family of no account. Consequently
Englishmen can hardly be expected sufficiently to sympathise with Indians in adjust-
ing the delicate relations of the family. But the French have thought out the whole
matter, and we should go to them for instruction about it.
J. NELSON, A PROSPECTUS OF THE SCIENTIFIC STUDY OF THE HINDU LAw 192-93 (1881).
34. In fact, Privy Council itself had consulted Roman law. See B. HOLLANDER, COLONIAL
JUST-cE 43 (1961).
35. Whateley v. Palanji Pestanji, [1865-67] 3 Bomb. H. Ct. (O.C.J.) 137, 140 (1866);
Pranjivan Goven v. Jaishankar Bhagvan, [1866-67] 4 Bomb. H. Ct. (A.J.C.) 46, 47 (1867);
Dhondu M. Naik v. Ramji Hanmanta, [1866-67] 4 Bomb. H. Ct. (A.J.C.) 114, 115-16 (1867);
Secretary of State for India v. Bombay Landing & Shipping Co., [1868-69] 5 Bomb. H. Ct.
(O.Cj.) 23, 24, 28, 47, 48, 49 (1868); Dadabhai Narsidas v. Sub-Collector of Broach, 7
Bomb. H. Ct. (AJ.C.) 82, 84, 85, 86, 87 (1870); Keshavrav K. Joshi v. Bhavanji, 8 Bomb.
H. Ct. (AJ.C.) 142, 146 (1871); Collector of Surat v. Daji Jogi, 8 Bomb. H. Ct. (A.J.C.)
166, 171 (1871); Balvantrav T. Bapaji v. Purshotam Sidheshvar, 9 Bomb. H. Ct. 99, 103
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A. HistoricalBases
The first Portuguese expedition to the Indian subcontinent was led
by Vasco de Gama, who landed on the Malabar coast in 1498. By 1571,
the Portuguese had captured Goa as well as other territories. For the
40. See B. ACHARYYA, CODIFICATION IN BRITISH INDIA passim (1914).
41. As Rankin observes:
The influence of the common law in India is due not so much to a "reception,"
though that has played no inconsiderable part, as to a process of codification carried
out on the grand scale....
G. RANKIN, supra note 21, at 19-20.
42. The observations of the authors of the Indian Penal Code, 1860, need be noted:
We have derived much valuable assistance from the French Penal Code, and from the
decisions of the French Courts of Justice on questions touching the construction of
that Code. We have derived assistance still more valuable from the Code of Louisiana,
prepared by the late Mr. Livingston.
INDIA, A PENAL CODE PREPARED BY THE INDIAN LAw COMsMISSlONERS 6 (1837). See also
Keshavray K. Joshi v. Bhavanji Babaji, 8 Bomb. H. Ct. (A.J.C.) 142, 146 (1871). Although
the influences in the matter of form are discernible, research is necessary in order to trace
the influence of actual French rules in the finished product of the Indian Penal Code.
Likewise, a study of the marginal notes (along with proposed provisions) of the draft
of the law of torts in India shows that had the law of civil wrongs been codified, it
would hase offered an excellent example of a statute embodying many Roman and con-
tinental law principles. See INDIA, DRAFr LAW OF TORTS passim (undated).
43. Cf. von Mehren, Roscoe Pound and ComparativeLaw, 13 Am. J. Comp. L. 507 (1964):
Scholars in the comparative field are today in very large agreement that, at least for
beginning students, study of contemporary civil-law system such as those of France
and Germany is much more rewarding and practical than study of the Corpus Juris.
Id. at 509.
next 250 years, the Portuguese, Dutch, French and British struggled
for supremacy. By the mid-nineteenth century, Britain eliminated its
western rivals, subdued the Indian rulers, and assumed dominion over
India (now, India and Pakistan). During the British rule in India,
Portugal retained Goa, Diu and Daman, and its enclaves, Dadra and
Nagar Haveli. 44 The system of laws, education, administrative machin-
ery and social institutions in these possessions all developed in a pat-
tern quite different from those that evolved in India under the influ-
45
ence of the British.
In July, 1954, "nationalist volunteers" occupied Dadra and Nagar
Haveli. A pro-Indian administration was formed and requested incor-
poration into the Indian Union. Under the tenth amendment to the
Constitution, these territories became a centrally administered ter-
ritory on August 11, 1961.
Goa, Daman and Diu were incorporated into the Indian Union in
December, 1961 (following conquest by military action), through arti-
cle 1(3)(c) of the Constitution. 46 The Goa, Daman and Diu (Admin-
istration) Ordinance, 1961, the Goa, Daman and Diu (Administration)
Act, 1962, and the Goa, Daman, and Diu (Laws) Regulation, 1962,
were effective in 1962 to extend both the administration and the rule
of certain laws in force in the rest of India. The scheme of this legis-
lation 47 was both to continue the operation of laws in force before the
appointed day (i.e., December 20, 1961) until amended or repealed,
and also to enable judges and other authorities to continue to exercise
lawful functions in connection with the administration of the territory
until any further provisions were enacted.
The Tribunal de Relacao48 continued to exercise its vested jurisdic-
44. For a story of Goa from the earliest times to the integration of the former Portu-
guese colonies into the Indian Union, see R. RAO, PORTUGUESE RULE IN INDIA (1963). See
also F. DANVERs, HISTORY OF THE PORTUGUESE IN INDIA (1894); C. KILOGUEN, AN HISTORICAL
SKEmrcH OF GOA (1831). France also retained small enclaves known collectively as Pondi-
cherry. This terminated in a 1954 accord by which France agreed to yield administration
of the enclaves to India. See notes 65-66 infra and accompanying text.
45. Aiyar & Sinha, The Problem of Transition in Goa, in THE PROBLEM OF TRANSITON 9
(A. Shah ed. 1965). For a "symposium of the many facets of this territory's [Goa's] crisis
of transition" see 69 SmINAR (1965). Both of these works, however, throw no light on
problems of law and judicial administration in this territory.
46. The article inter alia provides that the territory of India shall comprise "(a) the
territories of the states; (b) the Union territories specified in the First schedule; and (c)
such other territories as may be acquired." See also INDIA CONST. art. 240 (1950).
47. Identical laws were enacted almost contemporaneously for the governance and
judicial administration of Dadra and Nagar Haveli enclaves.
48. For a detailed description of the working of this court, see C. PEREIRA, TRBUNAL DA
RELACAo DE GOA (1964).
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tion under the laws in force until December 16, 1963, when the Goa,
Daman and Diu (Judicial Commissioner's Court) Regulation, 1963,
was promulgated "to provide for the constitution of a Judicial Com-
missioner's Court in Goa, Daman and Diu and for certain other mat-
ters." The court was established under section 3, effective December
16, 1963. Section 8 states that the court shall be the highest civil and
criminal court of appeal and revision, and shall have all such jurisdic-
tion as was vested in the Tribunal. This jurisdiction is in addition to
the jurisdiction exercisable under Indian laws. Section 22(i) provides
for abolition of the Tribunal, although under section 23(1), its aboli-
tion shall not prejudicially affect the continued operation of any notice
served, injunction issued, direction made or proceedings taken by the
Tribunal under the powers then conferred upon it. Section 23(3) then,
resorting to another legal fiction, provides that every decree, order
made, or sentence passed by the Tribunal shall be deemed for the pur-
poses of execution to have been made or passed by the Judicial Com-
missioner's Court.
The 1963 regulation was followed by the Goa, Daman and Diu
Judicial Commissioner's Court (Declaration as High Court) Act, 1964,
which was enacted by Parliament on May 16, 1964, and applied retro-
actively from December 16, 1963. The purpose of this act was to declare
the Judicial Commissioner's Court a high court for certain purposes
and to apply the provisions of chapter V of part VI of the Constitution
with certain exceptions and modifications.
B. Replacement of Portuguese Laws
The Portuguese laws, based on Code Napoleon and other conti-
nental systems, 49 have been and are being replaced. Details on the intro-
duction of various Portuguese laws can be found elsewhere,5 0 but the
history of personal laws deserves brief reference. Non-Christians were
governed by a customary law which apparently corresponded with pre-
49. See obiter observations of Judicial Commissioner Mr. Jetley in Xec Ayub v. Goa,
[19671 All India Rptr. (Goa) 102:
[W]hen called upon to deal with Portuguese Laws in accordance with their system
we have to pass from an environment of case law into a "World governed by Codes."
The Portuguese system is based on Code Napoleon and generally follows the pattern
of the Continental system of law. The Continental Judges have somewhat wider
powers of interpretation than those enjoyed by Judges in England and in our Coun-
try. This is so because the Continental Legislatures ordinarily are content to lay
down a principle and leave it to Judges to work out the details. The Continental
Judges can mitigate the rigidity of the rule or to prevent it from coming into collision
with moral dictates.
Id. at I10.
50. C. PEREiRA, HISTORaA DA ADMISNITRACAO DA JUSTICE NO ESTADO DA INDIA (2 vols. 1964,
1965). See also P. MALABARI, supra note 19, at 26 et seq.
51. Azvao, As CommuNEDADEs DE GOA 179-82 (1830) shows how until 1691 Hindus
circumvented the Foral in respect of escheat. See Derrett, Hindu Law in Goa, 67
ZEITSCHRIFT FUR VERGLEICHENDE RECHrSIVISSENSCHAT 203 (1965).
52. For an excellent account of how "minds trained in the pre-Napoleonic Civil (Roman)
Law handled ...typical, barely penetrable, oriental 'mystery'" of Hindu law problems
see Derrett, supra note 51. Our summary reproduces Professor Derrett's scholarly treat-
ment.
53. See, e.g., Goa, Daman and Diu (Extension of the Code of Civil Procedure and
Arbitration) Act, 1965, § 5 (2).
54. See, e.g., Data Xiva v. State, [1967] All India Rptr. (Goa) 4, 5, 7, 8 (comparing the
provision relating to the admissibility of statements made to a police official in the
Portuguese Criminal Procedure Code, the Indian Code of Criminal Procedure, and the
law as to corpus delicti, etc., in both the systems). In the case the court referred to the
decisions of the Portuguese Supreme Court of Justice which "after liberation have only
persuasive value." Id. at 10. See also V.V. Kamble v. P.A. Mascarenhas, [1967] All India
Rptr. (Goa) 97; A.E.N. Fernandes v. J.A.D. Fernandes, [1967] All India Rptr. (Goa) 100;
Parxurama v. Jaia, [1967] All India Rptr. (Goa) 120; Ministerio Publico v. Filomeno,
[1967] All India Rptr. (Goa) 51 (citing many decisions of the Portuguese Supreme Court).
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the judges have made between the Portuguese and Indian law rules.
Two cases may be noted.
In Xec Ayub v. State15 the accused was charged under section 368 of
the Portuguese Penal Code for involuntary homicide of four persons.
Xec Ayub, owner of a mine, entrusted the actual work of supervising
the mine to a supervisor (co-accused who did not appeal). On the fateful
day when the laborers were away on lunchbreak, a part of the mining
site (between 50 and 125 feet from where the work of mining was
actually being done) was blasted with dynamite. There had been ex-
cessive rain between 12 a.m. and 2 p.m.; at 4 p.m. a considerable part
of the rock and other material from the face of the mine tumbled down,
seriously injuring four workers who, despite quick hospitalization, suc-
cumbed to their respective injuries. Experts who probed the tragic
occurrence concluded that it was attributable to vis major and also
because the works-in-charge failed to take proper care to verify that the
site (where the victims were working) was safe in the context of the
blasting operations and the heavy showers. Section 368, translated,
reads:
The involuntary homicide which any person commits or causes
due to his lack of skill; to his lack of attention; to his negligence;
to his lack of expert knowledge or to his lack of obedience to the
provisions of any regulation shall be punished with imprisonment
from the month to two years and the corresponding fine.
The accused contended that the evidence marshaled against him did
not warrant the conclusion that he was guilty under the above section:
the experts had not put any blame against him, nor was it the conten-
tion of the prosecution that he was present at the scene of the accident.
The majority found the facts insufficient to warrant section 368:
[I]n view of the wording and tenor of section 368 of the Code, the
master cannot be held criminally liable for any of the acts of his
servant made punishable by that section. One can easily visualize
situations where the master may be liable civilly for those acts of
his employee where the latter can be hauled up criminally as well
as in damages. But to make the master liable criminally for the
acts which can justify a criminal charge against his servant, phrase-
ology more explicit than used in section 368 shall have to be
pressed into service.56
The court therefore quashed the order of the magistrate which ac-
55. [1956] All India Rptr. (Goa) 17. See also Xec Ayub v. Goa, [1967] All India Rptr.
(Goa) 102.
56. [1966] All India Rptr. (Goa) at 20.
cepted the charge against Xec Ayub and fixed the date for his trial.
The dissenting judge, Mr. Jetley, however, held that before vis major
can be used as a defense, a party must have done all that he was bound
to do. The defense of vis major is not a complete answer when there
is want of reasonable care on the part of the defendant. He read the
words "causes due to his lack of skill; lack of attention; failure to fol-
low the provisions of any regulation" in section 368 as eliminating the
requirement of mens rea:
This section seems to make the master criminally liable for the
acts of his servants. If it were not so, masters in accident cases in
mines would escape punishment by saying that they are not crim-
inally responsible for the acts of their servants.... The absence of
personal guilt seems to be immaterial in this case. The statute may
make the master liable for the acts of his 57
servants unless he can
prove that he himself is not in default.
Under the Portuguese law, he maintained, reports of the experts are
treated as substantive evidence; but discretion rests with the magistrate
to question the experts in order to scrutinize their conclusions. In the
absence of an examination of the experts, it was unsafe to accept their
conclusions with regard to vis major and the failure to take proper
precautions. It was for the court to determine whether or not the acci-
dent was really attributable to vis major, and it was improper to accept
uncritically the findings of experts (who are hardly expected to know
the legal concept of vis major).
In State v. Sebastiao Fernandez,8 one is struck by the presence of a
provision in Portuguese criminal law (in contradistinction to its Indian
counterpart) reflecting a concern for the protection of familial institu-
tions. The accused and a girl, close neighbors, were in love and had had
sexual intimacies on more than one occasion. He promised the girl that
he would marry her and on this basis persuaded her to have pre-marital
relations. After some time the accused (probably at the instance of
his parents) showed an unwillingness to marry her. The police exam-
ined the complainant, her father, and other witnesses and prosecuted
the accused for an offense of rape under section 292 of the Portuguese
Penal Code. Before the conclusion of the trial the accused married the
girl; but since he was less than 18 years old when the offense was com-
mitted, the magistrate had no option but to convict. The magistrate,
however, suspended the sentence in view of the marriage, relying on the
57. Id. at 22.
58. [1967] All India Rptr. (Goa) 86.
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A. Introductory Observations
It is unnecessary to consider the details of the confusing struggles of
the French and British in attempts to extend their influence in India.
Unlike the British, French success was only partial, being limited ul-
timately only to a small segment in the south, known as Pondicherry. 61
Founded by the French in 1674, taken by the Dutch in 1693, and re-
stored to the French in 1699, the English took it in 1761, restored it in
1765, retook it in 1778, restored it a second time in 1785, retook it
again in 1793, and finally gave it to the French in 1814. England's
dominion was too short and casual to have any material weakening
effect upon the continued prevalence of French civil law in this region.
59. An alternative more in keeping with the admonition to preserve the substance of
the introduced Indian Penal Code might be accomplished through liberal use of the
Probation of Offenders Act, 1958.
60. See, e.g., Pires v. Pires, [1967] All India Rptr. (Goa) 113.
61. There was another very small French settlement near Calcutta known as Chandra-
nagore. It was transferred by a separate treaty in 1952. See Union of India v. Manmull
Jain, [1954] All India Rptr. (CaIc.) 615.
For over 150 years the French legal system has been present in the
former colonies of Pondicherry, Karikal, Mahe, and Yanam.12 None-
theless there remain major differences between the effect of the French
and the Portuguese on the Hindu law in territories under their posses-
sion. First (unlike in the latter territories where Afonso's Foral had ex-
haustively codified the Hindu rules of law), the French administration
left the law for the most part in its traditional, uncodified state. Re-
maining as custom, the Hindu legal system under the French was able
to adapt itself to changes more easily than could its counterpart under
the Portuguese, frozen in the pages of Afonso's tomes. Moreover, the
flexibility of this custom-based approach allowed easy access to the
wealth of material in the ancient shastras and in the modern commen-
taries written by Indian and English masters in various parts of British
India.6 3 Secondly, whereas there was strong pressure from the Hindus
in the Portuguese territories to modernize and "civilianize" their laws,
the fact that Hindu citizens in French territories were able to opt to be
governed by French law obviated the necessity to undertake major re-
forms in Hindu law itself. Instead, the French Hindu who desired to
adopt western modes of living needed only to declare himself subject
to the French Civil Code. As a result of these two major distinctions,
Hindu law survived and continued to flourish in the former French
colonies in a much more real sense than was the case in the former
Portuguese colonies. 4
Administration of Pondicherry was transferred to India on Novem-
ber 1, 1954.65 A treaty of cession, signed on May 28, 1956, was ratified
62. For a brief but "careful exposition" of the constitutional history of the French
settlement of Pondicherry, see the opinion of Anantanarayanan, J., in Gobalousamy v.
Pondicherry, [1967] 2 Indian L.R. (Mad.) 10, 18-20.
63. See J. NELSON, A PROSPECTUS OF THE SCIENTIFIC STUDY OF THE HINDU LAW (1881).
64. For a good description of Franco-Hindu law see G. DiAGou, PRINCIPES DE DROIT
inuNou (1932); L. SORG, INTRODUCTION A L'WTUDE DU DR01T HINDOU (1895); L. SORG, TRATrL
TMaORIQUE Er PRATIQUE DE DRorr iNou (1897); Herchenroder, Study of the Law Applica-
ble to Native Christians in the French Dependencies and in India, 18 J. CoMP. LEG. &
INT'L L. (3d Ser.) 186, 189-90 (1936).
65. By an agreement dated Oct. 21, 1954, the Government of France transferred, and
the Government of India took over, administration of the territory of all French estab-
lishments in India with effect from Nov. 1, 1954. Thereafter in exercise of the powers
conferred by the Foreign Jurisdiction Act, 1947, the Government of India appointed a
Chief Commissioner for Pondicherry and extended 22 enactments in force in India to
the French establishments by virtue of the French Establishment (Application of Laws)
Order, 1954. For a discussion of some of the constitutional problems arising out of these
developments see N. Masthan Sahib v. Chief Commissioner, Pondicherry, [1962] All India
Rptr. (S. Ct.) 797; N. Masthan Sahib v. Chief Commissioner, Pondicherry, [1963] All
India Rptr. (S. Ct.) 533; K.S. Ramamurthy Redien v. Chief Commissioner, Pondicherry,
[1963] All India Rptr. (S. Ct.) 1464.
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69. Neither the acts governing the imports nor any authoritative textbooks disclosing
the relevant French law were placed before the Court. Universal Imports Agency v.
Chief Comptroller of Imports & Exports, [1961] All India Rptr. (S. Ct.) 41, 45.
70. Id. at 46.
71. Id.
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73. See, e.g., Comptoir d'Achat et de Vente du Boerenbond Beige S.A. v. Luis de Ridder
Limitada, [19491 A.C. 293; Commercial Court of Antwerp, August 16, 1919, Jurisprudence
du Port d'Anvers, 1921, 34.
1954. Section 6 of the General Clauses Act applies to the effect of the
repeal of enactments of the Indian legislature, and there is nothing in
the order which contemplates that the French law in operation before
merger of the French establishment is to be regarded as a statute
enacted by the Indian legislature. The French law after its supersession
has not been expressly kept alive in respect to any right or privilege
acquired or accrued under "things done" under that law. It would
be an unwarranted incursion into the field of legislation to attempt to
extend the protection of that law to transactions which have taken
place after the prescribed date by relying upon the General Clauses
Act.
The majority's assumption that "if what the saving clause saves is
only the executed contracts no further protection is necessary as no
question of enforcement of the contracts under the pre-existing law
would arise" is equally assailable. The saving clause does not say that
the French laws would apply to events following after "things done"
earlier. The argument that otherwise the saving clause would be otiose
is not appealing. The saving clause was meant, it is maintained, to
cover such situations as suits for damages arising out of the later dis-
covery of damage done to goods in transit or some other readjustment
of rights arising out of an event occurring before the completion of the
"things done." In such a situation the question would have to be de-
cided by the French laws. In the absence of the saving clause what the
effect of the transfer was on things previously done would have been
open to argument.
C. Madras High Court and French Law
Having incorporated Pondicherry into its territory by the treaty of
cession,7 4 which stipulated the continuance of existing laws, the Gov-
ernment of India has been aware of the danger of precipitating a hasty
changeover and has allowed the perpetuation of civil law principles.
The Madras High Court, which has acquired all jurisdiction exercis-
able in the former French possessions by the Cour de Cassation, Conseil
d'Etat, and the Cour Superieur d'Arbitrage, administers French law.75
Perhaps it is not insignificant that most of the opinions dealing with
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the application of French law have been delivered by Mr. Chief Justice
Anantanarayanan. That even the decisions of a judge like Mr. Anan-
tanarayanan, richly endowed with a comparative law perspective, can-
not withstand deep analysis indicates the immense difficulties involved
in applying the laws and techniques of one legal system to another. The
brief examination here of reported decisions in the areas of French civil
code, labor code, and penal code is preceded, when necessary, by a brief
reference to the major distinguishing features of civil law and Indian
law principles in order to properly appreciate the role of the Madras
High Court in handling these problems.
1. Code Civil and ProcessualLaw
The Code Civil,76 repository of the major branches of the French
civil law, deals with such matters as nationality, civil rights, marriage,
contract, and prescription. Unlike the Indian law, limitation (prescrip-
tion) is viewed as conferring rights and not as barring remedies. The
common-law doctrine of consideration in the realm of contracts (as well
as offer, acceptance 7 7 and other elements) is alien to French law, al-
though it has its own analogues.7 s The marked differences and similar-
ities in the various provisons of the Code Civil and their Indian coun-
terparts will be best understood when unfolded through concrete fact
situations involving their adjudication. It would be interesting, though
outside the scope of the present article, to observe the role played by
the courts in France when they interpret the provisions of the code and
to compare the solutions reached with those offered by the Indian law.
The case law in this area has yet to develop; nevertheless the decision
to which we shall refer offers interesting insights into the nature and
pattern of problems courts in India are likely to face. 79
76. For a brief description see J. DAWSON, THE ORACLES OF THE LAw (1968), M. Amsos
& F. WALTON, INTRODUCTION TO FRENCH LAW (3d ed. 1967); R. DAvm & H. DE VRIES,
THE FRENCH LEGAL SYSTEM 13-16, 49-50 (1958).
77. See generally von Mehren, The French Civil Code and Contract: A Comparative
Analysis of Formation and Form, 15 LA. L. Rv. 687 (1955), in THE CODE NAPOLEON AND
THE COMMON LAW WORLD 110 (1956). Although the fundamental notions of the English
law have been incorporated in the Indian Contract Act, 1872, there are certain significant
variations from the English law. See Rajaraman, The Law of Contracts in India, 8-9
REVIsrA DEL INSFITUTO DE DERECHO COMPARADO 180 (1957).
78. See, e.g., Glaser, Doctrine of Consideration and the Civil Law Principles of Cause,
46 DicK. L. REv. 12 (1941); Henry, Cause in the Civil Law and Consideration in the
Common: Much Ado About Nothing, 29 Ky. L.J. 369 (1941); von Mehren, Civil-Law
Analogues to Consideration:An Exercise in Comparative Analysis, 72 HARv. L. REv. 1009
(1959).
79. One trend is obvious. Despite language barriers the court has been taking con-
siderable pains in analyzing the involved fact-situations and in ascertaining the relevant
French law applicable to them. See, e.g., Selvaradjou v. Marie Josephine, [1964] 2 Indian
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91. FRENCH PENAL CODE art. 1 (J. Moreau & G. Mueller transl. 1960).
92. See Ploscowe, Development of Inquisitorial and Accusatorial Elements in French
Procedure,23 J. Calm. L. 372 (1932). In the Hindu or the Muhammedan system, operative
before the advent of the British, the judge played a more active role in eliciting the truth
as in the continental systems. See M. SETALvAD, supra note 4, at 45.
93. For details see Freed, Aspects of French Criminal Procedure, 17 LA. L. REv. 730
(1957); "Grzybowski, The Criminal Law of France, in WASHINGTON FOREIGN LAW SOCIETY,
ESSAYS ON FRENcH LAW 47 (1958); Hamson, The Prosecution of the Accused-English and
French Legal Methods, 1955 Calm. L. R y. (Eng.) 272; Keedy, The PreliminaryInvestigation
of Crime in France, 88 U. PA. L. REv. 385, 692, 915 (1940); Wright, French CriminalProce.
dure, 44 L.Q. REv. 324 (1928); 45 L.Q. REv. 92 (1929).
94. See observations of Anantanarayanan, J., in In re Rethinaswamy, [1967] 1 Indian
L.R. (Mad.) 226, 233. The accused has no constitutional guarantee to a trial by jury, and
the mode of trial is determined by the trial judge and the prosecution. Code of Criminal
Procedure, 1898, § 269, 3 INDIA CODE pt. 4 (1956).
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95. See Code of Criminal Procedure, 1898, § 173, 3 INDIA CODE pt. 4 (1956).
96. See 0. BODINGTON, AN OUTLINE OF THE FRENCH LAW OF EVIDENCE 122 (1904).
97. For an excellent analysis of the law relating to confessions in India and France see
Comment, Developments in the Law-Confessions, 79 HARv. L. Rv. 935, 1106-15 (1966).
98. For general discussion of civil party and civil action see Howard, Compensation in
French Criminal Procedure, 21 MODERN L. REv. 387 (1958); Larguier, The Civil Action
for Damages in French Criminal Procedure, 39 TUL. L. Rxv. 687 (1965); Pugh, supra
note 90, at 12 et seq.; Vouin, The Protection of the Accused in French Criminal Proce-
dure, 5 INT'L & CoMp. L.Q. 1, 7, 11 (1956).
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no title to it, but in the case of larceny the owner should have
some general or special ownership in it.102
It is interesting to note that while the French judges had no difficulty
in classifying theft of electric current as larceny under the French
Penal Code, recourse in India has been sought under a separate
statute. 103
The appeal in In re Rethinaswamy,10 4 brought as pourvoi en cas-
sation (and also under section 10 of the Pondicherry Administration
Act, 1962), involved the murder of a young man by a group of smug-
glers. The deceased had acted as an informant to the customs authori-
ties. By way of revenge, the smugglers conspired to abduct and injure
him. The informant was kidnapped by the accused; he was mercilessly
beaten near the seashore at Karikal and, with the assistance of some
fishermen, his body was dropped into the sea.
While there was acceptable evidence concerning the abduction of
the victim, the actual circumstances of the murder were "shrouded in
an almost impenetrable obscurity." There was no independent evi-
dence corroborating the charge of murder against any appellant; there
were only the unreliable and mutually incriminating statements of
several co-accused. The nature and the probative value of the testi-
mony of the accomplice (who alone gave a clue as to who committed
the major offense) came to be considered. As in English and Indian
law, the accomplice's evidence is worthless in French law unless it is
corroborated in material particulars by independent testimony. 05 In-
sofar as the tribunal criminel passed the maximum sentence of twenty
years imprisonment on all the accused under article 344 of the Code
Penal based on the accomplice's evidence, the High Court, speaking
through Justice Anantanarayanan, held that there was no evidence to
convict the accused on the capital charge and consequently reduced
the sentence under article 341 to that for kidnapping alone.
Although the opinion has a marked meticulousness in its analysis
of the many provisions of French law and their application to the
102. M. SETALVAD, THE COMMON LAw IN INDIA 134 (1960). See also R. RANGCHIHODDAS
D. T KoR, Tns LAW OF CRIMES 220 (21st ed. ,1966).
103. Electricity Act, 1910, § 39. See also Avatar Singh v. State of Punjab, [1965J All India
Rptr. (S.Ct.) 666, for a summation of rival contentions as to whether dishonest
abstraction of electricity is an offense under the Indian Penal Code, 1860, § 378 or
against the Electricity Act, 1910.
104. [1967] 1 Indian L.R. (Mad.) 226.
105. Id. at 236. The court relied upon 12 DALoz, R PrToiRE PRATiQUE para. 102 (no
date cited by the court).
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present fact situation, its following obiter observations about the role
of the jury in France are not wholly supportable.
As in the system of jurisprudence that has been administered in
this country, from the British period, the jury would appear to be
the sovereign and exclusive judges of fact, even under the French
processual law. 106
In fact, the French jury is quite unlike the jury known to common law
countries; it sits more in the capacity of lay judges than as triers of facts.
The jurors deliberate and vote with the judges on both the question
of guilt and the appropriate penalty. 0 7 The absolute separation of
fact and law has worked badly in France.
In re A lamelou'0 8 offers an interesting situation where the accused's
acquittal was a fortuitous circumstance. The appellant, convicted by
the cour d'assizes of Karikal under article 300 of the Code Penal for
having murdered her infant child born out of an allegedly promiscuous
relationship, was sentenced to solitary confinement for five years. The
appellant contended that either she gave birth to a dead child or the
child was alive at the moment of delivery, but since she was alone at
the time of delivery, it probably was the absence of any assistance that
led to the death of the child. The unusual feature of the case was that
the accused decided to withdraw her appeal proffered to the Cour de
Cassation under a procedure known as desistement (available to parties
except in matters involving grave crime). The public prosecutor drew
the court's attention to the fact that desistement was improper in this
case, since the conviction was for grande crime. The High Court heard
the appeal and, on a perusal of the evidence, concluded:
We are unable to find any such evidence or even a shred of such
testimony, which would support the conviction .... We cannot
rule out the possibility that the child might have met with some
accident at delivery .... It is a cardinal principle of all systems of
criminal jurisprudence, including French criminal jurisprudence,
that suspicion cannot displace proof, and that guilt cannot be in-
ferred by guesswork of any kind .... We find from a perusal of
article 694 of Dalloz Reportoire Pratique, volume II, that our
powers in cassation, even apart from section 10 of the Pondicherry
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for trial before the tribunal criminel. It is not the law that after the
extension of the Constitution of India to Pondicherry, only the Indian
Criminal Procedure and Penal Code and not French law should be
applied at the trial of the accused in such a case.
Doctrinally, this is a sound analysis of the legal situation, but it
would be appropriate to draw the attention of the legislature to a
problem unfolded by this decision. The continuance of pre-existing
laws, 115 especially when their anomalies have been removed in the
country of their origin, should be accompanied by appropriate re-
vision. A mechanical continuation has at times resulted in anachro-
nistic results.1 16
V. CONCLUDING R.EMARKS
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and also giving what is known in French jurisprudence as the motif for its decision.
Contrary to French tradition, which is marked rather by a comparative disregard of
precedents, the court has in true common law fashion accorded precedential value to
the judgments of the Cour de Cassation.