The continuing controversy over property rights, which began with efforts at land reform in the constituent assembly, has gone on at two levels: that of the battle between government policy-makers and legislative draftsmen on the one hand and the bar and courts on the other; and that between shifting political forces in India—those pressing for reform and those resisting. The initial struggle, in writing the Constitution, centered on the fate of the traditional rights of zamindars and similar intermediaries (often absentee landlords) whose holdings were sometimes very lucrative and drew protest from the exploited tenants. The main questions at this time were: should there be compensation and if so how much; should this decision be left to the state legislatures or should it be justiciable; what safeguards should be created to prevent extreme legislative action; should other kinds of property receive full compensation if taken by the state; should there be a distinction between major social reforms and property takings for public use? Article 31 of the Constitution was the compromise formula and its ambiguities left the issue quite open.

Lawyers had a profound influence upon the legislative history of the Hindu Code Bill. Enacted as a series of separate acts between 1954-1956 by India's First Parliament, this bill was intended to modernize, unify, democratize, and secularize Hindu family law and Hindu society, and especially to emancipate Hindu women. I shall first outline the general influence of lawyers in India's national legislature during 1921-1956. Then I shall describe their influence on the pivotal events of this particular legislative history, with primary emphasis upon the British Indian period.

Throughout this legislative history lawyers tended to dominate the legislature, its leading political parties, and the executive (not to mention the judiciary). In the British Indian Central Legislature, lawyers usually formed the largest single occupational group. Even when landlords achieved numerical supremacy, lawyers maintained actual legislative leadership. Parties did not attain great strength in this legislature, but the more important of those that did arise were led by lawyers. After independence, in the Provisional Parliament (the legislative side of the Constituent Assembly) and in the subsequent First Parliament, lawyers constituted the largest and most influential occupational group. Lawyers supplied the majority of members and most of the leadership of the Congress Party, which controlled these Parliaments, and of other parliamentary parties which took an interest in the bill.

Thirty-six men served on the Supreme Court of India from its inception in 1950 through 1967. Examination of their background attributes reveals that the prototypic judge was the product of a socially prestige-ful and economically advantaged family, was a Hindu (most often a Brahmin), was educated at one of the better Indian universities or in England, spent twenty years in private law practice before the High Court in his home state, refrained from participation in the nationalist movement before 1947 and in postindependence politics thereafter, was appointed to the High Court before which he practiced when he was forty-seven, spent ten years as a High Court judge by which time he was the Chief Justice or seniormost puisne judge of that Court, and then was promoted to the Supreme Court when he was fifty-seven years of age. There are, of course, exceptions to this prototype, but striking is the homogeneous character and similar socialization experiences shared by these men.

The law, especially Anglo-American law, gives as a rule wide latitude to the determination of the sentence that follows the conviction of a defendant. The law may set the minimum or maximum sentence for the particular crime, it may set the range, or it may allow different types of sentences (fine, prison, etc.); at the very least, it provides a choice between two alternatives, for instance, after conviction of a capital crime, it now allows in most states a finding of death or life in prison.

As a rule it is the judge who determines the sentence, but in capital cases, and in some states in other cases, it is the jury. In one state, California, it is the prison authority to whom the sentencing decision falls, the judge merely pronounces sentence in terms of the range set by the penal code. But wherever the discretionary power lies, discretion is almost unlimited. Very seldom will an appellate court impinge on this discretion and change the sentence.

The Center for the Study of Law and Society at the University of California has received a Ford Foundation grant to support a program of studies of criminal law and social policy. The five-year grant was awarded to the Center and the Earl Warren Legal Center. Activity under the grant will focus on theoretical and empirical studies of “law and order.” Among the participants are Caleb Foote, who is studying the nature and uses of judicial discretion; Sanford Kadish and Mortimer Kadish, studying variations in the ways in which legal systems deal with departures from rules; Jerome Skolnick, on leave from the University of Chicago, studying with Richard Spiegelman the process of penal code revision; Paul Jacobs, working on the governance of police; and Rodney Stark, embarking on a series of field studies of crises in law and order.

The legal profession as it exists in India today had its beginnings in the first years of British rule. The Hindu pandits, Muslim muftis and Portuguese lawyers who served under earlier regimes had little effect upon the system of law and legal practice that developed under British administration. At first, the prestige of the legal profession was very low. From this low state and disrepute the profession developed into the most highly respected and influential one in Indian society. The most talented Indians were attracted to the study and practice of law. The profession dominated the public life of the country and played a prominent role in the national struggle for freedom. “There was no movement in any sphere of public activity—educational, cultural, or humanitarian—in which the lawyers were not in the forefront.” However, after independence the relative prestige and public influence of the profession declined.

There can be no doubt that parties to a lawsuit in ancient Hindu law had a right to be represented by other persons. The question arises whether or not the representatives referred to in the ancient texts correspond to the pleaders, advocates, vakils or attorneys of modern India. In other words, did ancient Hindu law have the kind of legal procedure in which the rights of the parties were safeguarded through the services of a class of experts, as is the case in present day India and in most other modern legal systems?

Looking at Hindu law as it became known to the West in the latter half of the 18th century, it did indeed seem as if the question was to be answered in the affirmative. Halhed's Code of Gentoo Laws (1777), translating the Vivadarnavasetu, did have a section (ch. III, § II) explicitly called “Of appointing a vakeel (or attorney).”

Relatively little is known about the operation of legal systems in India during the period of Muslim political dominance, primarily because most disputes were settled outside of the courts that were maintained by the ruling powers. Even during the Mughal period, when the government was more highly centralized than at any other time before the British conquest, Mughal law enforcement seldom reached the village level. Only in cases where there had been a very considerable breach of the peace, or where the revenue of the village had not been paid, were villagers likely to come into contact with Mughal law enforcement officials. One reason why the Mughal legal system was relatively undeveloped in the rural areas was that the Mughals possessed neither the manpower nor the means of communications that would enable them to staff and operate such a system of courts extensive enough to provide convenient access to the villagers.