I have posted a paper on SSRN
titled “The
Evolution of Corporate Law in Post-Colonial India: From Transplant to
Autochthony”. The paper seeks to track the evolution of corporate law in
India from 1850 all the way until the enactment of the recent Companies Act,
2013, and to examine the different forces which were at play at important
points in time that shaped the nature of the law.
titled “The
Evolution of Corporate Law in Post-Colonial India: From Transplant to
Autochthony”. The paper seeks to track the evolution of corporate law in
India from 1850 all the way until the enactment of the recent Companies Act,
2013, and to examine the different forces which were at play at important
points in time that shaped the nature of the law.
The abstract is as follows:
The essential
thesis of this paper is that while Indian corporate law began as a legal
transplant from England, it has been progressively decoupled from its source
with subsequent amendments and reforms being focused either on finding
solutions to local problems or borrowing from other jurisdictions. To that
extent, decolonization has had a significant effect of radically altering the
course of Indian corporate law. Current Indian corporate law not only
represents a significant departure from its colonial origins, but the
divergence between Indian law and English law as they have developed since
independence has been increasing. While the Indian lawmaking process indulged
in close cross-referencing of English legal provisions during the colonial
period and immediately thereafter, the more contemporary legislative reforms
pay scant regard to corporate law in the origin country that initially shaped
Indian corporate law.
thesis of this paper is that while Indian corporate law began as a legal
transplant from England, it has been progressively decoupled from its source
with subsequent amendments and reforms being focused either on finding
solutions to local problems or borrowing from other jurisdictions. To that
extent, decolonization has had a significant effect of radically altering the
course of Indian corporate law. Current Indian corporate law not only
represents a significant departure from its colonial origins, but the
divergence between Indian law and English law as they have developed since
independence has been increasing. While the Indian lawmaking process indulged
in close cross-referencing of English legal provisions during the colonial
period and immediately thereafter, the more contemporary legislative reforms
pay scant regard to corporate law in the origin country that initially shaped
Indian corporate law.
This offers
valuable lessons. First, even though India is considered to be part of the “common
law” family, corporate law has evolved somewhat differently from the origin
country, England. In that sense, it casts significant doubt on the assumption
that all countries within a legal family bear similarities. On the contrary,
each host country may follow a trajectory that is different from that followed
by the origin country of corporate law. Second, it supports the proposition
that legal transplants can be challenging unless the local conditions in the
host country are similar to that in the origin country. Variations in economic,
social, political and cultural factors may bring about dissonance in the
operation of a transplanted legal system. Third, a comparison of the historical
colonial experience in the functioning of the transplanted legal system and the
more contemporary experience in the post-colonial period suggests fragility in
the foundations of the transplant.
valuable lessons. First, even though India is considered to be part of the “common
law” family, corporate law has evolved somewhat differently from the origin
country, England. In that sense, it casts significant doubt on the assumption
that all countries within a legal family bear similarities. On the contrary,
each host country may follow a trajectory that is different from that followed
by the origin country of corporate law. Second, it supports the proposition
that legal transplants can be challenging unless the local conditions in the
host country are similar to that in the origin country. Variations in economic,
social, political and cultural factors may bring about dissonance in the
operation of a transplanted legal system. Third, a comparison of the historical
colonial experience in the functioning of the transplanted legal system and the
more contemporary experience in the post-colonial period suggests fragility in
the foundations of the transplant.