Power is the manifestation of authority. In human societies organized activities started from the dawn of History. 'Inherent Power' as a juristic concept does not have a clear and uninterrupted history. As the etymology of the word connotes it is the power of the court of law. Courts must have power to adjudicate. The source of the power is law. Law, enacted by legislature, or laid down by superior courts, or emanated from usage and custom, or derived from equity, or evolved from religious texts, or recognized from the thinking of philosophers, or encapsulated in maxims, confers the power on the court. But, when the law is not clear, or a specific law is absent, then also the courts must have power. Such power is inherent in the court. Even without being specifically called by any name the court has power to deal with unprecedented, unforeseen and unanticipated situations. The origin of this power, inherent power, is inextricably intertwined with the judicial process. Today the concept of inherent power has earned a place in the province of jurisprudence.
In the above situation to understand the acceptance, prominence and recognition of the concept of inherent powers in the realm of jurisprudence one has to assess the relevance of the various factors and forces which contributed to it. Similarly, when the examination of the concept is in relation to the criminal justice system and in respect of the High Court a glance through the major developmental events in the legal and constitutional history of India is also required. This includes the evolution of judicial institutions in India during the modern period culminating in the establishment of the High Courts in 1861 and the legislative process which saved and preserved the inherent power of the High Court through the Criminal Law Amendment Act of 1923. With this amendment section 561-A of the Code of Criminal Procedure, 1898 was incorporated. When the Code was amended in 1955 this provision was left untouched. When the Code was reenacted in 1973, section 482 of the new Code became the repository for the provision in section 561-A of the earlier Code. The rest is present history which tells us how this power is exercised by the High Courts to give effect to the orders passed under the Code, or to prevent the abuse of the process of the court or otherwise to secure the ends of justice.
Ancient and Medieval Period: Vedic Dharma, Marathas and Mughals
Indian legal history in the ancient and medieval period, takes its inspiration from the political organization. The empires which rose and fell in the Indian sub-continent from the days of Nandhas to the days of Mughals and Marathas contributed their might to the development of a native, indigenous jurisprudence. In the ancient period, it was rooted in Smrithies, Sruthies, Vedas, Vedanthas etc. It was the speciality of the Savants, to think of and speak of Dharma. In the medieval period, the Sulthans and Mughals gave a new dimension to the administration of justice. Their activities prompted the historians to call their rule Islamic and the justice administered, the Islamic variety of the justice. There was action and interaction between the pristine Indian philosophy and the Islamic philosophy. Since, the rulers were interested in fighting battle, and scholars were not interested in developing jurisprudence in the changed context, the administration of justice was in a fluid state, sans laws, sans courts, sans justice, sans judges, sans everything.
When the British reached the Indian soil, in the early years of the 17th century, the Indian scenario was of a medieval, backward looking, superstitious, stagnant society, unaware of the great possibilities of the world around. It was the best of the times for the West and it was the worst of times for the East. It was the age of wisdom for the West and it was the age of foolishness for the East. It was the spring of hope for the West and it was the winter of despair for the East, and then Westerners came, to India and the East, riding on the waves of renaissance, reformation and geographical discoveries.
The historic events which marked the advent of the Westerners into the East were Vasco De gama's successful landing at Calicut. Subsequently, more Europeans came. But, for the relevance of the discussion in this study, the arrival of the British is more significant. The British connection with India, technically begins in 1600 A.D. when Queen Elizabeth issued a charter establishing a company of merchants for conducting trade with the East. The first batch of British Merchants reached the Indian shores in 1608 at Surat, which was a major international port of the Mughals. Then, India was only a geographical expression. Mughals dominated a substantial territory, but there were the Rajapuths, the Marathas, and the southern Kingdoms, and a number of small principalities which owed allegiance to the big ones. There was utter chaos and confusion so far as the political organization of the peninsula was concerned.
The British had only a commercial interest in the beginning. But, they soon developed economic interest, military interest and political interest. When political interest got established, all paraphernalia of polity came with it, including the administration of justice, legislative activities, executive power of the State, revenue administration, defence, maintenance of law and order, public services etc. Thus, the modern State was born in India, with the active involvement of the British. A random look into the history shows that legal and constitutional developments occurred simultaneously with the political, military and economic developments from 1600 to 1950 A.D.
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