British Colonialism and the Indian Legal System

What the contours of the legal system in India were in pre-colonial times and how British colonialism altered it to its detriment has great relevance today. After all, the system that is in practice today is part of our colonial legacy. Shivanand Kanavi explores this important subject in this conversation with Dr. Kamala Sankaran, who teaches at the Faculty of Law, University of Delhi.

What the contours of the legal system in India were in pre-colonial times and how British colonialism altered it to its detriment has great relevance today. After all, the system that is in practice today is part of our colonial legacy. Shivanand Kanavi explores this important subject in this conversation with Dr. Kamala Sankaran, who teaches at the Faculty of Law, University of Delhi.

(Excerpts follow)

SK: Let us explore how colonialism changed the judicial system in India and what impact it had on the people. Today we see a disconnect between people and the legal system and discontent among a large number of people because they do not get justice or, where it is delivered its comes too late. What are its roots?
KS: A good starting point is to look at what existed in India before the British came. It is difficult to simplify this since India is a complex region. Even before the Mughal rule there was in many parts of the country a shastra-based system and a system based on custom or vyavahara, which was based on the life experience of people, how they dealt with norms and the systems and institutions they had created. On top of that you have another system of institutions which was created with the advent of Mughal rule in India, which covered vast areas of India. Even this allowed plurality of systems. So what marked India before the colonial intervention is plurality of legal systems and institutions. One of the significant effects of colonialism was the imposition of uniformity. Pluralism was considered antithetical to a neat and orderly centralized system.

SK: Did it have a theoretical justification for such a system?
KS: Yes. It has its origins in the dominant philosophy of Britain of those days. It was based on the notion of an Austinian state, where a single monarch or a power had all the power which was indivisible. All powers devolved from top down. That was the structure of the modern nation state that the British were familiar with. So there was centralization of legislative authority and executive authority. Seeing a region with multiple states was itself a shock to them having come from a unitary one. On top of it to have multiple legal systems, where different castes and religions had their own institutions was quite alien to them. So one of the things they tried to bring is certainty and uniformity in the law; certainty and uniformity in the judicial and legal institutions they created. That homogenization itself was a major shock to Indians. The judicial system is one part of the legal system. A legal system would involve all the laws, norms, standards that are laid down to determine what is right or wrong correct or incorrect. It would also involve all that goes to enforce the legality: that is the courts, police, jails etc.

SK: How did they deal with the plurality they saw in India?
KS: When the British came to India I think they realized that there were already fairly well developed dispute resolution systems of various types in different geographical regions. We know that when the British came to India around 1600 they chose not to immediately displace the local institutions if they could. Their strategy in India was different from their strategy in North America, or in parts of Africa or in Australia. They considered those lands as res nullis; that is, they belonged to no one or belonged to those who found them first. They claimed that in those countries, there was an absence of a legal system – even though there were indigenous people in those lands. They argued that the Anglo-Saxon law in toto could be imposed on all those people.

However, they already knew that India was an advanced civilization with many institutions and laws in place. So they tread fairly cautiously. After the battle of Plassey, the entry of Warren Hastings in 1772 and the Regulation Act of 1773, they very clearly stated that with regard to personal matters pertaining to Hindus and Mohammedans, the English law would not apply. However, English law would apply for other aspects like property, commerce etc. They also set up the courts in civil jurisdiction. That is quite significant. The battle of Plassey won the British the diwani and not the nizamat.

SK: Can you explain the system of diwani and nizamat?
KS: Diwani is the civil administration and nizamat dealt with the criminal jurisdiction as well as the army in each subah. This was part of Mughal administration. To the best of my understanding, it meant ‘he who had the purse, would not have the army, and vice versa’, which prevented any threat arising to the central order from the subahs.

SK: What impact did the new British judicial system have?
KS: It was profoundly disturbing. They set up these specialized courts manned by people trained in law with so called ‘independent judges’. That itself was a cultural shock for the people of India, because till that time, if you look at the existing dispute resolution systems, typically at the village level, one had the panchayat system. Panchas would be notables who would be known locally. They were not ‘elected’ as we understand today. By the British yardstick they would not be ‘independent’ as they would be members of the community.

The idea of an independent judge comes from Anglo-Saxon jurisprudence and it requires that the judge’s mind is a tabula rasa, a clean slate, with respect to the dispute and he only allows his mind to register that which is ‘relevant’ to the dispute. The medium by which the judge appreciates facts or the evidence is through the two lawyers representing either side. What they bring into the court largely determines the final outcome. So who should be allowed to address the court; complex rules of evidence concerning who could step into the witness box; what matters can be addressed and so on, became very important. For example, unless one’s own eyes or ears had seen or heard the transaction, one could not testify and one could testify only with regard to that particular transaction.

Whereas in the panchayat, which was held in the open, anybody who had even fringe knowledge could speak. They did not have to go through this filter of ‘is this relevant, are you worthy’. Therefore you had a sense of participation and anybody could speak. With the new system however, one had a judge who was not known to the parties, which was seen as virtue in the English system but was alien to Indians; it goes without saying that the language of the court was English and one had to hire a lawyer and so on.

The new courts had very strict rules of relevancy. Many of these continue till today. Thus new courts with their very specialized rules of evidence which were manned by very technical judges, and where you would have to place your full faith in the vakeel, who alone would be the voice that would speak in the court, made the system inaccessible to Indians. Thus, in all these area: the choice of the judge, who could testify, regarding what they could testify, the location of the court and so on — all these things were alien and the process alienating. In the old panchayat, even if you were not of the ‘high caste’, you could sit or stand up. I am not romanticizing it, but it was more participatory.

The judgment itself was in the form of a ‘yes’ or ‘no’, whereas, the panchayats always negotiated, with no clear winner or loser. Panchayats were willing to find a mid-ground so that all could save face. People were used to that system, where you would not lose everything but some form of justice would be done. So that you did not have a win-lose but a win-win situation.

The solution gave a lot of discretion to the decision makers to decide what would best serve the ends of justice. So long as their decision was not out of sync with vyavahara as practiced, they had a whole range of flexibility. In contrast, for the British, the ‘certainty of law’, that it was fixed before the dispute came into being, was seen as a major virtue. It also needed a black and white text, written and published, giving it stability and majesty.

SK: How did the infamous Gentoo Code come about?
KS: In India if you take the law applicable to the Hindus one had the shastras, the shruti and the smriti, which constituted the shastric sources of law. They were constantly subjected to interpretation by commentators, glossators etc. Then you also had vyavahara which could differ from the shastras and varied with time and region. However, vyavahara could override shastras also.

In different parts of the country the usages developed differently and these were taken to be the law. For example regarding women’s rights to property, even if some of the shastras did not permit it, in large parts of India women did own property, so that was vyavahara, as for example in southern and eastern India.

This went against the British conception of homogeneous law. So in 1773 Warren Hastings organized the documentation in black and white of what the law is. That was Halhed’s “A Code of Gentoo Law” that he translated and compiled in 1776. Sir William Jones also translated some important Islamic texts. Earlier, the panchas had the freedom to fashion their remedies, had freedom to look at the exigencies of the situation, etc.

But once you were confronted with a law in black and white, for every contingency, the consequence was determined, and there was far less flexibility. Further, they could override the vyavahara.

SK: How did the new property rights involving buying and selling of land and eviction of peasants from the land come into being?
KS: It started with taxes owed to the British arising out of the new Permanent Settlement. A huge amount of litigation came up from Bengal, Bihar and Awadh in the Calcutta court. This required that property be put on the market for sale to recover the revenue. This in turn required the tweaking of traditional Hindu and Muslim Laws. Property was personal and private and its alienation was very difficult in pre-British times. The capacity of the karta of the Hindu undivided family to alienate was greatly assisted by the British courts. The right to alienate served the British colonial interests.

The doctrine of lapse also went against the older theory of kingship that existed in India but it was upheld by the Privy Council. The rights of the zamindar, the duties of the zamindar – all these changed.

SK: How did the defeat of the Ghadar of 1857 and the establishment of direct British rule change the judicial scene?
KS: After 1858 over the next 30 years they enacted a lot of legislation.

For example, in 1860 they legislated the Indian Penal Code, the Societies Registration Act and a little later in 1867, the Press and Registration of Books Act. They had seen organization among Indians in 1857. Organisation was power, so the law declared that a group of people could not form an organisation unless they were registered with the state. Knowing the power of propaganda, and the role played by Urdu akhbars in Delhi during 1857, they saw the need to control the press and hence enacted the Press and Registration of Books Act. The three laws they brought in immediately after 1857 were meant to criminalise any kind of action challenging the colonial state.

The Criminal Procedure and Civil Procedure codes (1872) were then brought in. Once you have a centralized administration, you cannot have panchayats in different areas doing things in their own way. The rules were created by a centralized power. Broadly, the laws of the 1860s were geared towards consolidating the colonial state. In the 1870s and 1880s the objective was consolidating the economic empire and hence the new laws relating to contracts, sale of goods, trusts, telegraph etc.

The other law that helped in the consolidation of the empire was the Land Acquisition Act (1894), which gave the power of eminent domain to the state to acquire land. Acquiring land for all the major projects that the empire required like railways, industry etc was its objective. They would acquire land in the name of public interest and then hand it over to a private party. We have seen how this is being used even today against the farmers for acquiring land for industrial purposes.

SK: Did the power of eminent domain not exist with the state in pre-British times?
KS: I do not think it existed in this far reaching form. The power of the state to levy a maximum of one third share of the produce existed but that you could completely dispossess somebody’s of his property to hand it over to a third person does not seems to have been broadly practiced. Of course in times of war, etc requisitioning would have happened.

But the British took it to new heights – of acquiring land for all the major projects that the empire required like railways, industry etc. The irony is that they would acquire land in the name of the public interest and then hand it over to a private party. The Telegraph Act was passed, the postal system was set up, a monopoly was created in communications. All this helped the empire.

Then came the legislation relating to the setting up of companies and regulating conditions in factories. I also want to mention the Workman’s Breach of Contract Act (1859). It enabled them to provide labour to serve the purposes of the British Empire the world over through indentured labour. They needed labour in the West Indies, Malaya, Sri Lanka, Africa etc. Agents would go to the villages and recruit. Maybe they did not capture and kidnap as was done for the slave trade in Africa but short of that, everything else was done.

Recruited workers were sent away on long voyages. As Marx said, the modern worker was ‘free’ in a double sense. He was ‘free’ from all property and he was ‘free’ to enter or not to enter into a wage contract. But in India the worker was not free to choose his employer. He would be criminally charged with breach of contract if he tried to abandon his employment and employer.

SK: What about the Arms Act (1878)?
KS: The main effect of that was to disarm the people by prohibiting the carrying of arms without a ‘licence’. In the American constitution the right to bear and carry arms has been seen as a residual right that people retain which has still not been taken away. But the British colonial theory never recognized this right. The British constitutional theory was based on the Austinian notion of a centralized authority which has all sovereign power and a subject have only those, powers that are given back to him/her. The notion of an inherent liberty by virtue of being a human, which were recognised by the French and American constitutions, was not accepted in India. You only had the rights given to you by the crown. The colonial state formation was a disempowering process.

SK: What about militias and Yeomen rising up to assist the state?
KS: That may have existed in feudal times but as the modern nation state emerged, the sole monopoly and prerogative to inflict violence came to exist with the state.

The right of the people to resort to violence would be a lawless act as you would “taking the law into your own hands”. In a very limited way the right of private defence was recognized. When somebody attacked you, you could use equal force to repel that person. But that could be done in a purely reactive way.

SK: Could you speak about the colonial roots of Indian labour law?
KS: Who has the right to be a worker and employed is determined by the employers and that is something that labour law recognises. That is why it is not worker friendly.

For example when capitalism and colonialism wanted expansion of employment they would drag persons away and compel them to work. One had the slavery system as practiced in Africa where literally a net was thrown over slaves they captured and they were dragged off. In India they were not so crude (slavery had been abolished in England) but in every state there would be agents, jamadars, sardars, who would go village to village recruiting workers.

They were completely regulated by the British state because they wanted labour for plantations in India and for the whole empire. At that time you had to work, and breaking out of your employment was considered a criminal act. However when recession struck, as in the 1890’s or in the 1920’s, labour law shifted away from trying to get more workers and recognized the inherent right of the employer to lay off or dismiss. Suddenly the contract of employment becomes a contract freely entered into with a free exit. So the job security that workers wanted has never been recognized. To the extent that workers are organized and have won some rights, there is some amount of redundancy and retrenchment compensation.

So the inevitable is only postponed for a period in order that the worker can go out and look for another job. Labour law has this aspect that it accommodates the cycles of capitalism. Today we are told that labour law is inflexible and we don’t have an exit policy and that is the problem with Indian industry. That is not always so. Problems of Indian industry have very little to do with the labour law.

SK: What was British attitude towards the huge mass of adivasis who were neither Hindu nor Muslim? How did they interact with them, their rights, customs, forms of state etc?
KS: They just dealt with them using their full military might and colonial laws, as they did with the Native People in North America or with Aborigines in Australia and New Zealand. For example they took over forests as crown property and created reserved forests, protected forests etc. Forest dwellers now became ‘intruders’ who did not have any legal rights because they did not have systems of private property ownership. It was a complete takeover of the natural resources.

SK: The impact of colonialism on Indian society is a fascinating subject as much of it lingers on to this day as a colonial legacy. We will continue this conversation later too.
Thank you.

Related Posts

Leave a Reply

Your email address will not be published. Required fields are marked *