by Yuvraj Trivedi 5 February 2021
In the second half of the 18th century, the East India Company had to create a state through which it could administer the rapidly expanding territories acquired by the conquest or accession. The British colonies in North America and the Caribbean were largely an extension of the basic political and legal institution of Great Britain. Only in Ireland, Wales, and Scotland did the British face a colonial problem that required innovation.
After the battle of Plassey in 1757, questions were raised about the nature of sovereignty in India. It was agreed in general that India had a state system that was in disarray and decline but had recognisable institutions. It was largely accepted that India had been an ancient civilization, and forms of local self-government were stable and deeply entrenched.
The East India Company had, over time, acquired many of the attributes of the state in Bengal and parts of S. India. It could wage war, make peace, raise taxes and administer justice to increasing numbers of Indians who inhabited the territories where the company was acting as a sovereign.
Debates started over the question of what responsibilities a private company had for the well-being and prosperity of the subjects, garnered state functions based on royal grants and charters.
In 1765 the ‘Diwani’ rights, i.e., collection of revenue was granted to the East India Company as lord Clive rightly remarked that the company had become a collector and nawab proprietor’s revenue (Ranajit Guha). Here the problem was that the assessment and collection of land revenue were in the hands of Indian specialists who were deft in perplexing the company. What further perplexed and intrigued the company officials was that the records were all in the Persian language. The customs and traditions wielded much power concerning any written code of rules or records. To assess and collect taxes, company officials started going in the fields, and it was a journey in the unknown. After 1765, for 5 years, the company officials managed the revenue matters such that a horrendous famine occurred, which devastated a third of the population. Large tracts of land remained uncultivated and turned into a wasteland. Law and order also took a beating as famine and revenue policies led to the emergence of ‘Dacoits’ who prayed on the helpless peasantry and disrupted trade and commerce.
East India Company was a trading company. The objective was that the administration produces a fixed and regular return in revenue, which paid all colonial state expenses and provided profit for the investors. In 1772 to streamline the administration index, a new parliamentary act was made to create Governor-General’s position. To streamline administration, a post of the collector was framed. He was to have mixed executive and judicial power in a defined area (a district) which took over pre-existing Mughal units, the ‘Circars,’ which in turn were the units of province or ‘Subah.’
Hasting’s (first governor-general) believed that Mughal’s had an effective administrative structure. His plan of 1772 leads to the establishment of colonial courts. In the previous 50 years in Bengal, he was also aware that this system had crumbled due to constant warfare, mal-administration, growth of local chieftain, and the privatisation of public offices. He believed that the vast knowledge and experience embodied in the various Hindu and Muslim texts were relevant for developing British administrative institutions.
He went about the translation of (Ain-I-Akbari) of Abul-Fazal into English, which had all key administrative procedures and practices followed during Akbar’s reign for the empire’s effective administration. He encouraged young servants of the company to study Sanskrit, Persian, Arabic, etc., for a better understand and control of Indian society.
Apart from his executive function as ‘Tax Collector, Hasting’s was to preside over two courts. ‘Court of Dewans’ dealt with revenue and civil litigation, and ‘Fauj Dari’ court dealt with internal order and criminal law. Law was administered in ‘Dewani’ court was Hindu law for Hindus and Muslim law for Muslims. In the ‘Fauj-Dari’ court, it was to be Muslim criminal law. It was assured that in both Hindu and Muslim traditions, there were legal texts that were infected ‘codes’ which were known and could be interpreted by legal specialists. A Hindu law officer (pandit) was to assist the collector when the case involved Hindus and a Muslim law officer (Maulvi), where the case involved Muslims. In terms of legal technologies, documentation for law and evidence was given importance, unlike the Mughal era, where oral testimonies were important.
The Mughal Indian Political system model was absolute and arbitrary power, unchecked by any institution, social or political, and it rested in the person of the emperor with property and honours derived solely from the will of the despotic ruler. There were no fixed rules of inheritance and no primogeniture. Justice was dependent not on the rule of law but on the rule of men, who could be influenced by money, status, and connection in the exercise of their office of judge.
It soon came to be realised by British rulers that Indians, as despot kings had ruled them, required the same framework. It was believed that Indians are best ruled by ‘strong hand,’ who could administer justice roughly and readily unfettered by rules and regulations. It was also seen that the courts, their procedures, and the prosperity of Indians to perjury only served to delay justice and made the single peasant folk of India a pray of lawyers. This was believed would lead to alienation of the masses’ natural loyalty who always felt for a strong, benevolent despot. And this role was to be acquired by the British of ‘Mai-Bap.’
In 1772, a parliamentary committee was propounded that s there was no law in India, British law and institutions should be introduced in the vacuum. Hasting’s opposed this move. According to him, British law was too technical and complicated. He declared that the ancient constitution of Bengal was very much intact (G.R. Gleig). Hasting’s opined that it was totally wrong that written laws were totally unknown to the Hindus. He stated that Hindus had had laws that continued unchanged from the remotest antiquity. These laws were known to Brahmins (G.R. Gleig). Hasting’s thought of making Hindu law and tenets available to a court that pronounced judgements on various litigations concerning property, inheritance, marriage, claims of debt, etc. he persuaded 11 pandits in Bengal to compile from Shastri literature on Hindu law a code that could be converted into English for the judges to use. The translation was done first in Persian and thereafter into English by Halhed in 1776, a code of Gentoo law or ordination of the pandits (Rosane Rocher). The original compilation in Sanskrit was termed ‘Vivadarnavasetu,’ bridge across the sea of litigation, and was used in the courts till the early 18th century.
Darett argued that the topics covered in the code were those supplied by Hastings and that the order in which the sections appear does not correspond with anything known to the usual SHastric texts (J.D.M Derrett). Rosane Rocher argued that the Shastric version of the code was a traditional compilation of ‘Nibandha type’(extensive commentary) (Rocher).
William Jones (1746-94), a barrister judge at the Crown Court, Calcutta, opined that Halheds code was badly marred-rather more curious than useful (Cannon Jones). He himself learned Sanskrit so that the stream of Hindu law remained pure. Jones sent to (Edmund Burke) the leading critic of East India Company’s administration in Bengal. His ideas for the ‘best practicable system of judicature,’ Jones believed that India had an established legal system and that British laws should not be imposed upon it. Jones believed that the basis of law to be administered in the company’s court should be digests of Hindu and Muhammadan law compiled by Conogos and Maulvis and pandits (legal scholars and practicing lawyers). This interpretation should be attached to East India company courts, and they should be selected after careful selection and paid adequately so that they do not get tempted. William Jones thought that the laws of the natives must be preserved, inviolate, and the decrees of the court must be comfortable to Hindus and Muslims. He believed that lawgivers had a fixed body of law and codes over a period of time, but it had been corrupted by interpretation and commentaries. Jones wanted to provide the British court in India, the crown, and the East India Company with a sure basis on which to render decisions consonant with a true or pure version of Hindu law. His goal was to develop a complete check on the native interpretation of the several codes. He wanted a complete digest of Hindu and Muslim laws on the great subject of contract and inheritance.
On his death in 1794, the compilation in Sanskrit and Arabic texts was complete, and he began translating them into English (Amales Tripathi). In 1797 the English translation was completed by H.T Colebrooke and published as the ‘Digest of Hindu laws on Contract and Succession’ in 1798. Jones wanted to restore to Indian laws, which pre-dated the Islamic version. It was assumed that the British’s wealth would increase many-fold if the natives are contended and productive.
After the reform of the judicial system in 1864, which abolished the Hindus and Muslim law officers of various Indian courts and with the establishment of provincial High court, publication of the authoritative decision in English has transformed Hindu and Muslim law into a form of English case law. This act of codifying native laws can be seen as an act of state structure to shape the laws according to their own will. The colonial rule shaped the existing corpus of Hindu and Muslim law in a form that was vulnerable to own notions and not reflecting the true essence of native culture and traditions.
The religious interference was reduced to a great extent under the crown rule of 1864. Pandits, maulvis, and other religious, indigenous people lost their jobs and their stance injustice. This gave the British authority a strong foot-hold in the administration, which lead to a systematic system of revenue collection by the company. It led to a much more stable grounds for the company to grow in a foreign land.