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The Beginning of Colonial Legal System in India: Codification

The British East India Company acquired the Diwani of Bengal in 1765 and thus, began the process of assuming semi-state functions and codification along with it. Codification started with the primary objective of ensuring revenue collection.[1] For this, the British tried to create a legal Code which would include certain, unambiguous and uniform laws to govern the brown subjects in the vast territories the British had acquired. Perceiving that there were legitimate legal systems in pre-colonial period, they tried to create a Code based on homogenous systems, for which they turned to ancient Scriptures and customs of the people. However, as the territory of the British expanded, it became more difficult to apply the law codified in Bengal, with the British officials and governors opposing it themselves.

Different codes were adopted for different regions, so even though a uniform law could not be executed for all, a unified system of different laws for different regions was created. In different places like Malabar, Bombay and Punjab, homogeneity of the subjects was assumed and for uniform laws, the customs of the dominant class was legalized and rest of the customs seen as unauthorized practices taking place in the name of Hindu/Muslim practices, thereby suppressing the diverse non-dominant groups in the society. It was a complex process involving a conflict between contradictory ideas of reformers and preservers.

Yet in spite of the efforts of men like Governor General Warren Hastings, Sir William Jones, Colebrooke and other Orientalists to give India a law of its own, based on its customs and religion, Macaulay took the much dreaded step and introduced English Law in India, first with the Indian Penal Code, drafted in 1830s and adopted in 1872, and many more Codes followed by it; and all the efforts of the Orientalists resulted in was a restructuring of tradition of India.

Throughout this paper, while tracing the codification process, I would highlight how the so called Orientalists were very much despotic at their core – they believed in the superiority of British law, be it Jones in Bengal believing that British law was liberal and Indians were attached to the opposite, or the British judges in Malabar, who influenced by Victorianism, found it shocking to allow female authority, or the officials in Punjab, who through the process of interrogation, made native farmers change their answers to suit the British taste.

Even though there was a conflict between contradictory ways of utilitarian reformation and orientalist preservation for codification, they were same at the core – believing in the superiority of the British. While utilitarians wanted a complete imposition of their ways in India, the Orientalists through their Codes tried to define the indigenous practices in British ways and modify those to their own taste and then impose them, like introduce the concept of schools for Hindu Law.

As early as 1668, through one of its charters, the East India Company had established courts on English lines in Bombay and other factory areas. These were the Presidency and the Mofussil courts.[2]

From the 1760s to 1790s, debates came up on a private company exercising such functions and the well-being of the subjects.[3]The East India Company had acquired the Diwani, right to collect taxes and administer justice on behalf of the Mughal Empire[4], and executed semi-state functions with the primary object of collecting revenue to fund its expeditions in India as well as creating profits for the shareholders of the company. By 1785, a sort of dual authority had been established where the allegiance of Indian subjects lay with the Company and Companys with the British Parliament.

An interesting thing to note is that whatever their real intentions were, the Company justified their policies through the philosophers hired specifically to this end. J.S. Mill trying to justify the utilitarian policies of free trade in India announced that the best form of government was paternal despotism, Indians being immature, needing a guardian-like figure to rule over them.[5]This concurs with the classic despotic model of India, thought of as having tyrannical rulers and helpless masses, want of rule by some enlightened and strong authority. The classic despotic model of India with a tyrannical ruler developed under East India Company officials like Alexander Dow and almost simultaneously, the theocratic model of India having its own laws since ancient times developed under men like Warren Hastings, who lobbied with certain members of the Court of Directors against introducing the British Law in India in 1774.[6]

Thus, began the process of compiling codes and legitimizing despotism of law in the name of Orientalism. Given that the Companys primary object for Codification was revenue collection, it was naturally revenue, tax and property laws that the Company first sought to codify. Certainty was required in this area due to the various revenue collecting customs, unwritten ones too, in different areas of Bengal and a feeling of mistrust in the minds of the British officials on the subtle natives.[7]

Thus, A Code of Gentoo Laws or Ordinances of Pundits produced under Governor General Warren Hastings in 1776, which included topics thought of as important by him[8], included subjects like Debt, Inheritance and other such property related laws. To this end, eleven of the most respectable pundits in Calcutta were persuaded to compile a code from the Sastras, to be translated in English, to provide a complete and accurate source of Hindoo Law for the newly appointed British judges in the courts. As no European in Bengal knew Sanskrit, the work of the pundits was first translated into Persian by a Bengali Muslim and then into English by a Company servant H. B. Halhed. The original version was called vivadarnavasetu.[9]Halheds book, or for that matter any such Code, since it was based on the opinions and interpretations of the pundits, was far from the accurate Code desired by Hastings and his successors.

Orientalism was not necessarily believing the superior character of the ancient Hindu (or Muslim) law, in fact it was based on the contrary assumption. Following Hastingss efforts, Sir William Jones, an Orientalist scholar, sought to compile a complete digest of Hindu and Musliman Laws, on the great subjects of Contracts and Inheritances[10] finding Halheds book badly marred and because he could no longer bear to make decisions by relying merely on the native pundits and maulvis.[11]

Jones wanted to give the judges and the people a standard of Justice citing texts of greatest authorities arranged chronologically. Governor General Cornwallis allotted him funds for this purpose and from 1788 to his death in 1794, he worked on this code and had finished the translation from Sanskrit to Persian. After his death, it was H.T. Colebrooke who finished the translation to English in 1798 and published it as The Digest of Hindu Law on Contracts and Successionsor vivadabhangarnava. He wanted to give Indians a Code based on indigenous laws for the British laws were liberal and the Indians were attached to the opposite.[12] This reveals how the Orientalists believed in the despotic model and inferiority of India to Britain at their core.

They had the same ends and the same beliefs, only the means differed. While the proponents of despotic model believed there was no need of legitimizing their acts, the Orientalists believed that they should justify their rule and revenue collection, sometimes through codes and sometimes through philosophies developed by men like J.S. Mill.Orientalists wanted to give the natives their own law after converting it into a form which resembled the British form. Bernard Cohn notes how the concept of schools was introduced to Hindu law – a term which was alien to it and something which had developed in early modern Europes jurisprudes.[13]

The British thought of the diverse native customs as being corrupt versions of the original ones. Thus, for the purpose of compilation of any Code, the British relied on ancient texts like Manu, Yajnavalkya, Brihaspati and Narad, which commanded the highest authority[14] for the Hindus and the Quran, AlHidaya andHadith for the Muslims[15]. Since the Hindus were seen as practicing laws given in the ancient era and the Muslims since the Muhammedan era, the principle seems to have been the older the text, the more authentic and more authoritative it is. The efforts of the Orientalists to show that the Indian State was not despotic led to heavy reliance on Sastras and thus, a representation of the Indian natives as being a religious people in every aspect of life, including law, thus giving these texts an unprecedented authority over lives of the natives seen as fully submitting to religion[16]. Through the process of creating a uniform Code for all Hindus and Muslims, the British suppressed all the diverse social groups, besides making Hindus and Muslims socially exclusive groups.

The Orientalists were despotic in a different sense that instead of tyrannical rulers, they talked of the devious Brahmins. Brahmins were seen as a devious minority and the British wanted to protect the simple majority from them. The preface to Halheds book talked about how the original compilation was in a language unknown to the bulk of the people (Sanskrit) and that the people offered the Brahmins respect similar to idolatry.[17]

Thus, it shows that they saw the majority as simple, gullible and readily believing in Brahmins who were nothing but corrupt and self-serving, and had distorted the original law of the Hindus. This is a very colonial interpretation of what happened in pre-British India as sources show that the law was not based on scripts, implying that the law followed by the Hindus was not a distorted form of the Scriptures because in pre-British India, the Brahmins were not in such a place of authority, like lawyers or professors as they were under the British in the first place.[18]

As the British spread over India, under the cloak of Orientalism, they introduced the customs and laws they had been accustomed to in the Victorian era in Britain. In 1792, the British acquired Malabar after defeating Tipu Sultan. It was declared that the rules for Malabar would be based on the same general tendency for Bengal, Bihar and Orissa, and on the rules as framed in July, 1787.

But the rules of Bengal proved inapplicable to the society structure of Malabar and here too, codification was sought for which the Nambudiri Brahmin tradition was selected to be norm, delegitimizing all other practices that had existed. This de-legitimization was accompanied by the official claim that the British were upholding the ancient customs and usages of Malabar which had been saved by the timely intervention of the British, which otherwise would have caused a revolt (T.L. Strange and William Holloway). G. Arunima very aptly covers this idea when she says that it must have been the Victorian notions of family and society which gave the ideological back-up for doing away with the matrilineal customs in Malabar, of a male head of a household, of women having no right to property, of there being insufficient proof to determine the authority of a female over a male.[19]

Bombay too, could not be ruled by the Bengal code. In 1820, Mountstuart Elphinstone, the governor of Bombay himself criticized the textual and customary law for their incoherence, looseness and contradictions and was of the opinion that these were based on a set of medieval texts no one understood properly.[20] The Codes of Bengal were inapplicable in Bombay, where customs were preferred over texts too. The Elphinstone Code was passed in 1827 in Bombay which favoured customs as the Anglo-Indian administrators there had found out that sacred texts were not as trustworthy sources of law as they were supposed to be in the time of Warren Hastings.[21]

Even in Punjab, though now the focus was on customs rather than texts, the British in the name of recording the practices to make laws, laid down their own moral opinions whether it was making natives change their answers through repeated questioning or other similar ways. Codes like Riwaj-Ul-Arz and Riwaj-I-Ams published in 1870s and 1880s recorded the customs of the people rather than ancient Scriptures. Punjab was seen as different from Bengal as it was more like a clan oriented society.

The British ,to get the practices codified, resorted to village elders. The British not only heard the answers but questioned and cross-examined the elders when the answers went against their sense of norms and interpreted them according to their own discretion – according to their own utilitarian/Victorian/Roman sense of justice. Here too, they looked for antique customs and distinguished between the norm and the exception and ultimately led to a systematization of tradition into something which it had not been.[22]

For all the tolerance that the orientalists showed, they laid down the qualifications for customs in Punjab according to the European enlightened standards. According to the Punjab Laws Act of 1872, in order to be valid custom had to be reasonable, continuous, not against public policy or equity, justice and good conscience and not void.[23] This led to a contradictory set of qualifications to be fulfilled, the customs had to be antique as well as reasonable. This seems problematic in itself as what is reasonable would depend on an individual and their society. To the British, what was either Victorian or utilitarian was reasonable. Thus, despite all claims of preserving the tradition, the British laid down a rule that would most certainly eliminate any or all of the antique customs practiced by the Indians which was seen as barbaric by the British.

Another argument to be made here is that the British through this process of codification led to differences among the heterogeneous group of natives. Whether it was the authority given to the ancient Scriptures in Bengal, which heightened feelings of India having a golden past before advent of Muslim rulers, or the Brahmanisation of the society which widened the gulf between upper and lower castes, or the privileging of the agricultural community in Punjab which led to distinctions between settled and non-settled groups, who were tackled as thugs under the Acts of 1836 and 1843.

The process of grabbing the man at the top to ensure allegiance of the rest of the society caused irrevocable changes to the structure of the society itself. The uniform code of the indigenous laws made by the aliens (British), made the native subalterns feel like aliens and outcastes in their homeland.

Even though the orientalists wanted to preserve the ancient Indian customs, in the early years, codification was limited only to matters of property, inheritance, etc. – matters which would affect the revenue collection of the East India Company, which was a private company in the end, and had to generate profits for the shareholders. In Bengal, the Codes produced in the early years under Hastings and Jones dealt with only such topics as regarded important for revenue collection and a century later, in the early years of annexation of Punjab to their territory, works like riwaj-i-ams, riwaj-ul-arz and Tuppers Customary Laws of Punjab (1881) contained only those matters that dealt with transfer of property.[24]

An interesting perspective offered by Elizabeth Kolsky is that the British wanted to codify law as they were threatened by the non-official British men for their violence on the Indians, not on humanitarian grounds, but because were openly flouting their exclusive authority to punish the subjects.[25]

But that seems to be only a marginal problem, though Kolskys argues that the British might not have been able to maintain their hold over India had it not been for the differential laws for the British and the natives and other Europeans.[26] Codification was more of a process of asserting paramountcy through a process of upholding and then delegitimizing the authority of natives – pundits, maulvisand village elders. Thus in 1864, when the British thought they had gained enough grasp over the natives, the norm of hiring pundits and maulvis in courts was abolished.

Under Macaulay, the Indian Penal Code was produced in the 1830s and a process of getting other such Codes in place started. He stressed on creating a class of Indians English in taste and opinion – a class who could understand the Codes produced under him and thus, get rid of the laws based on Shastras and Quran. To quote him, As soon as the Code is promulgated the Shasters and the Hedaya will be useless to a Moonsiff or a Sudder Ameen. I hope and trust that, before the boys who are now entering at the Mudrassa and the Sanskrit College have completed their studies, this great work will be finished.[27] Thus, under Macaulay, all the efforts to preserve indigenous law under Orientalists, were undone and a systemized process for introducing English law had started.

The British had in their hands various codes and detailed documents about their subjects but despite these numerous texts, they failed to capture the indigenous norms as they had been – fluid and diverse[28], due to their search for uniformity. As Colebrooke pointed out, the Codes were of little use to people conversant with indigenous laws, and of still less service to those who were not conversant with the indigenous customs.[29]

With Macaulays entry into the picture, the Indian Penal Code was produced and this led to an end of the disguised despotism of law[30] in the name of upholding tradition to an actual despotism by the British Law. The quest for introducing an ancient Indian Constitution for the natives ended in India having written and concise Codes of English Law, something which even England did not have. India became an experimental ground for executing such a highly systemized form of law that even surpassed the common law functioning in England as opposed to preserving the immemorial text or custom based laws that had prevailed in India in pre-British period.

End-Notes:
[1]Janaki Nair, Women and Law in Colonial India (Kali for Women 1996) 19
[2] Janaki Nair, Women and Law in Colonial India (Kali for Women 1996) 23
[3]Bernard Cohn,Colonialism and its Forms of Knowledge in The Bernard Cohn Omnibus (Oxford University Press, 2004) 133
[4] Elizabeth Kolsky, Colonial Justice in British India, White Violence and the Rule of Law, Cambridge Studies in Indian History and Society (Cambridge University Press, 2010) p. xi, glossary
[5] Partha Chatterjee, The Black Hole of Empire(Princeton University Press, 2012) 177
[6]Bernard Cohn, Colonialism and its Forms of Knowledge in The Bernard Cohn Omnibus (Oxford University Press, 2004) 141
[7] Bernard S Cohn,Colonialism and its Forms of Knowledge in The Bernard Cohn Omnibus (Oxford University Press, 2004) 133, 134
[8] JDM Derret, Religion, Law and the State (Faber & Faber, 1968) 240-241
[9]Bernard Cohn, Colonialism and its Forms of Knowledge in The Bernard Cohn Omnibus (Oxford University Press, 2004) 141
[10]Garland Cannon,Letters of Sir William Jones, volume 2(Oxford, 1970) 721
[11] Garland Cannon, Letters of Sir William Jones, volume 2(Oxford, 1970) 795,
[12]Bernard Cohn, Colonialism and its Forms of Knowledge in The Bernard Cohn Omnibus (Oxford University Press, 2004) 144
[13]Bernard Cohn, Colonialism and its Forms of Knowledge in The Bernard Cohn Omnibus (Oxford University Press, 2004)  149; Ludo Rocher, Schools of Hindu Law (1972)
[14] A. C. Bannerjee, English Law in India (Abhinav Publications, 1983) 162
[15] Michael R. Anderson, Islamic Law and the Colonial Encounter in British India(Curzon Press Ltd., 1996) 9
[16] Lata Mani, Recasting Women: Essays in Colonial History, Contentious Traditions: The Debate on Sati in Colonial India (Kali for Women, 1989) 95, 96
[17]Bernard Cohn, Colonialism and its Forms of Knowledge in The Bernard Cohn Omnibus (Oxford University Press, 2004)  142
[18] Lata Mani,Recasting Women: Essays in Colonial History, Contentious Traditions: The Debate on Sati in Colonial India (Kali for Women, 1989)114-115
[19] G. Arumnima, Changing Concepts of Rights and Justice in South Asia - A Vindication of Rights of Women: Families and Legal Change in Nineteenth Century Malabar(Oxford University Press, 1998) 121, 125, 128, 129
[20]Jon E. Wilson, Anxieties of Distance : Codification in Early Colonial Bengal(Kings College, University of London, 2007) 17
[21] M.P. Jain, Indian Legal History (2006) Chapter XXIII
[22]Neeladri Bhattacharya, Remaking Custom: The Discourse and Practice of Colonial Codification (Oxford University Press, 1996)
[23] Neeladri Bhattacharya, Remaking Custom: The Discourse and Practice of Colonial Codification (Oxford University Press, 1996) 42
[24]Neeladri Bhattacharya,Remaking Custom: The Discourse and Practice of Colonial Codification (Oxford University Press, 1996) 33
[25]Elizabeth Kolsky, Colonial Justice in British India, White Violence and the Rule of Law, Cambridge Studies in Indian History and Society (Cambridge University Press, 2010)  29
[26]Elizabeth Kolsky, Colonial Justice in British India, White Violence and the Rule of Law, Cambridge Studies in Indian History and Society (Cambridge University Press, 2010)30
[27]Minute by the Honble T. B. Macaulay, dated the 2nd February 1835 http://www.columbia.edu/itc/mealac/pritchett/00generallinks/macaulay/txt_minute_education_1835.html, accessed 2 October, 2015
[28] Marc Galanter, The Displacement of Traditional Law in Modern India, Journal of Social Issues (Universiy of Chicago, 1968) 67
[29] Jon E. Wilson, Anxieties of Distance : Codification in Early Colonial Bengal (Kings College, University of London, 2007) 17
[30] Radhika Singha, Providential Circumstances: The Thuggee Campaign of the I83os and Legal Innovation Modern Asian Studies (Cambridge University Press, 1993) 90;

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