Criminal law, closely connected with processes of pacification, came to be an area where a modernizing and centralizing thrust was most evident. Radhika Singha’s study of early-colonial criminal law has revealed the ways in which the state tried to establish a new monopoly over legitimate violence and power of punishment. This concentration sought to displace the partial dispersal of legal authority among many diversely hierarchized social institutions persisting from pre-colonial times.
The new legality was crucial to the EIC’s bid to enforce a modern notion of indivisible sovereignty. Earlier Islamic criminal law permitted relatives of the victim of the crime to exact restitution or retribution for offences from the offender: patterns of punishment such as this, which had generally governed Mughal criminal justice, were gradually eliminated in colonial times.
Criminal law, as reformed and systematized by Macaulay’s draft Penal Code of 1837 and finalized in the early 1860s, was "territorial": applicable equally to everyone living under British Indian jurisdiction, and not differentiated along lines of religious community or caste. Singha has argued that this conception of legal equality, of "abstract and universal" subjects irrespective of differences in social status and community affiliation, emerged in colonial conditions essentially as the byproduct of a ruling framework which she terms a "despotism of law".
Was it humanitarianism?
This was not the consequence of any benevolent application of Western liberal principles, nor, at least initially, of deliberate pressures from below. Jörg Fisch, too, had questioned the earlier assumption that reforms in specific laws made from the time of Cornwallis onwards were noticeably marked by a higher level of humanitarianism.
Mutilation largely disappeared as a form of punishment. But the eighteenth-century British practice of awarding death sentences for even minor property-related crimes—protecting limbs while cheapening lives—was extended to all of India and could well have appeared much more barbaric to many Indians.
Singha has also shown the many limits to this theoretically modernizing and homogenizing thrust. These limits occurred because of the need to accommodate alien rule to pre-existing patterns of social authority or prestige. In 1795, for instance, Benaras Brahmans were exempted from the death penalty for homicide, and numerous concessions were made to "rank and respectability … the authority of husband over wife, and master over servant …"
The emergence of Family Law
… (T)here were numerous unresolved contradictions: between a "public" law based on territorial principles which sought to foster the freedoms of the individual in the marketplace, and the colonial retention and development of a parallel domain of "personal", "private", or "family" law that enforced religious and community obligations specific to Hindus and Muslims. Even today, to take a familiar instance, Indian income tax returns make a distinction between the individual and the "undivided Hindu joint family" assessee.
This has been a critical dualism, underlying the whole evolution of colonial law and persisting to some extent into postcolonial times. It has had extremely significant social consequences. Its origins go back to Warren Hastings’ decision in 1772, soon after the Company had decided to "stand forth as the Diwan", and it was reiterated several times subsequently.
It was decided that matters concerning "inheritance, marriage, caste, and other religious usages and institutions" were to be regulated, for Hindus, "according to their Shaster", and for Muslims by the "Shariat". The EIC no doubt thought that they were following Mughal precedents: it had been customary in the diwani branch of administration to consult Brahman pandits and Muslim legal experts in disputes concerning Hindu or Islamic laws.
J.D.M. Derrett has suggested, in addition, that the British in the late eighteenth century may have found such a division quite natural. There was still a distinction in their own country between "courts temporal" and "courts Christian". The latter were run by clergymen and dealt with disputes concerning marriages, wills, and religious discipline.
Codification of personal law
Following precedents drawn from both Mughal and British practices, pandits and the ulema played a key role in Company courts, adjudicating disputes in matters of personal law. Gradually, however, colonial officials became suspicious about nepotism or corruption in their interpretations of custom and scripture. This quickly became a major impetus for the codification of personal laws so as to make them independent of conflicting interpretations among Indian legal experts.
Early British Orientalists like Halhed, Colebrooke, and Macnaughten produced successive digests of Hindu law. In 1864 their Indian assistants — court-employed pandits and maulvis who advised judges about tricky points of custom and scripture — were formally dropped from court employment. It was assumed that courts and modern lawyers now possessed sufficient knowledge of indigenous legal texts to render the mediation of traditional experts unnecessary.
Legal historians have pointed out that the corpus of "Anglo-Hindu" and "Anglo-Muhammadan" law that resulted from this evolution was on many matters considerably more orthodox, rigid, and geared to high-caste, elite-Muslim, and patriarchal assumptions than pre-colonial legal practices probably had been. The colonial claim to continuity with indigenous traditions was in fact accompanied by significant change.
This produced a pattern that combined a centralization of laws which were, nonetheless, bifurcated along community lines. Homogenizing tendencies were combined with a strong insistence on an absolute distinction between Hindu and Muslim laws.
Local laws vs central laws
In Mughal times, the administration of civil justice with the help of pandits and Shariat experts had been confined to major centres of imperial power. The absence of any systematic structure of appeals meant that the vast majority of disputes were likely to have been settled at local, village, or small-town levels in accordance with immensely varied local customs.
Even twentieth-century administrative reports from remote regions often make it clear that the dharmashastras or the shariat remained virtually unknown and irrelevant. Nor were distinctions between Hindu and Muslim particularly clear.
The more relevant identities could be based on affinities of locality, caste, or sect. Colonial civil law, which progressively developed a hierarchized and uniform structure of courts of appeal, and tended to prioritize classical texts over local custom, thus helped to bring about significant extensions in the influence of orthodox Brahmans and Muslim religious experts and practices.
Declare your religion
It needs to be noted, further, that the legal changes made it increasingly incumbent for people to declare themselves definitively as Hindu or Muslim in numerous everyday disputes. In this sense, the impact of law on the consolidation of religious distinctions was probably greater than that of the census—which was, after all, only a decennial affair.
The codified and communally bifurcated structures of colonial personal or family law also set the terms for indigenous middle-class religious and social reform efforts: from Rammohan Roy—the first major modern Indian reformer — onwards. Each reformer directed his efforts only at his own community.
Textual support from the scriptures had to be found if changes, such as a ban on widow immolation and the sanctioning of widow marriage, were to be made legal. Public spheres that emerged through debates around questions of reform thus remained trapped in bifurcated Hindu and Muslim domains.
Protecting caste and patriarchy
Instances abound of British Indian civil courts modifying local customs through an application of brahmanic texts, in the process frequently consolidating and providing a legal basis to caste and patriarchy. In 1864, for instance, the Bombay High Court struck down a local practice whereby a deserted wife could marry again, on the grounds that "such a caste custom, even it be proved to exist, is invalid, as being entirely opposed to the spirit of the Hindu law." Restrictions on inter-caste marriages were similarly made more rigorous. The colonial shoring-up of caste hierarchy and discipline also took a second form. Courts of civil law recognized castes as being to some extent "self-governing" bodies that had powers to make and enforce rules of their own. The social boycott of recalcitrant members (nai-dhobi bandh, in North Indian parlance) was, therefore, considered non-justiciable.
Yet courts did intervene at times—with a systematic bias towards the preservation of high-caste privilege. The exclusion of lower castes from temples was upheld in Bombay in 1883, defending Chitpavan Brahmin privilege; by the Privy Council in 1908, rejecting Shanar (Nadar) claims to the wearing of the breast cloth by their women; and in Nagpur in 1924, when Mahars were convicted for entering a village temple enclosure.
As late as 1945 a Madras court ordered low-caste Ezhavas, who had bathed in a tank adjoining a temple used by dominant caste Nairs, to pay the costs of the necessary "purificatory" ritual. By this time, judges and lawyers in Indian courts would have been overwhelmingly Indian and predominantly high caste.
Excerpted with permission from Modern Times: India 1880s–1950s, by Sumit Sarkar, Permanent Black
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The new legality was crucial to the EIC’s bid to enforce a modern notion of indivisible sovereignty. Earlier Islamic criminal law permitted relatives of the victim of the crime to exact restitution or retribution for offences from the offender: patterns of punishment such as this, which had generally governed Mughal criminal justice, were gradually eliminated in colonial times.
Criminal law, as reformed and systematized by Macaulay’s draft Penal Code of 1837 and finalized in the early 1860s, was "territorial": applicable equally to everyone living under British Indian jurisdiction, and not differentiated along lines of religious community or caste. Singha has argued that this conception of legal equality, of "abstract and universal" subjects irrespective of differences in social status and community affiliation, emerged in colonial conditions essentially as the byproduct of a ruling framework which she terms a "despotism of law".
Was it humanitarianism?
This was not the consequence of any benevolent application of Western liberal principles, nor, at least initially, of deliberate pressures from below. Jörg Fisch, too, had questioned the earlier assumption that reforms in specific laws made from the time of Cornwallis onwards were noticeably marked by a higher level of humanitarianism.
Mutilation largely disappeared as a form of punishment. But the eighteenth-century British practice of awarding death sentences for even minor property-related crimes—protecting limbs while cheapening lives—was extended to all of India and could well have appeared much more barbaric to many Indians.
Singha has also shown the many limits to this theoretically modernizing and homogenizing thrust. These limits occurred because of the need to accommodate alien rule to pre-existing patterns of social authority or prestige. In 1795, for instance, Benaras Brahmans were exempted from the death penalty for homicide, and numerous concessions were made to "rank and respectability … the authority of husband over wife, and master over servant …"
The emergence of Family Law
… (T)here were numerous unresolved contradictions: between a "public" law based on territorial principles which sought to foster the freedoms of the individual in the marketplace, and the colonial retention and development of a parallel domain of "personal", "private", or "family" law that enforced religious and community obligations specific to Hindus and Muslims. Even today, to take a familiar instance, Indian income tax returns make a distinction between the individual and the "undivided Hindu joint family" assessee.
This has been a critical dualism, underlying the whole evolution of colonial law and persisting to some extent into postcolonial times. It has had extremely significant social consequences. Its origins go back to Warren Hastings’ decision in 1772, soon after the Company had decided to "stand forth as the Diwan", and it was reiterated several times subsequently.
It was decided that matters concerning "inheritance, marriage, caste, and other religious usages and institutions" were to be regulated, for Hindus, "according to their Shaster", and for Muslims by the "Shariat". The EIC no doubt thought that they were following Mughal precedents: it had been customary in the diwani branch of administration to consult Brahman pandits and Muslim legal experts in disputes concerning Hindu or Islamic laws.
J.D.M. Derrett has suggested, in addition, that the British in the late eighteenth century may have found such a division quite natural. There was still a distinction in their own country between "courts temporal" and "courts Christian". The latter were run by clergymen and dealt with disputes concerning marriages, wills, and religious discipline.
Codification of personal law
Following precedents drawn from both Mughal and British practices, pandits and the ulema played a key role in Company courts, adjudicating disputes in matters of personal law. Gradually, however, colonial officials became suspicious about nepotism or corruption in their interpretations of custom and scripture. This quickly became a major impetus for the codification of personal laws so as to make them independent of conflicting interpretations among Indian legal experts.
Early British Orientalists like Halhed, Colebrooke, and Macnaughten produced successive digests of Hindu law. In 1864 their Indian assistants — court-employed pandits and maulvis who advised judges about tricky points of custom and scripture — were formally dropped from court employment. It was assumed that courts and modern lawyers now possessed sufficient knowledge of indigenous legal texts to render the mediation of traditional experts unnecessary.
Legal historians have pointed out that the corpus of "Anglo-Hindu" and "Anglo-Muhammadan" law that resulted from this evolution was on many matters considerably more orthodox, rigid, and geared to high-caste, elite-Muslim, and patriarchal assumptions than pre-colonial legal practices probably had been. The colonial claim to continuity with indigenous traditions was in fact accompanied by significant change.
This produced a pattern that combined a centralization of laws which were, nonetheless, bifurcated along community lines. Homogenizing tendencies were combined with a strong insistence on an absolute distinction between Hindu and Muslim laws.
Local laws vs central laws
In Mughal times, the administration of civil justice with the help of pandits and Shariat experts had been confined to major centres of imperial power. The absence of any systematic structure of appeals meant that the vast majority of disputes were likely to have been settled at local, village, or small-town levels in accordance with immensely varied local customs.
Even twentieth-century administrative reports from remote regions often make it clear that the dharmashastras or the shariat remained virtually unknown and irrelevant. Nor were distinctions between Hindu and Muslim particularly clear.
The more relevant identities could be based on affinities of locality, caste, or sect. Colonial civil law, which progressively developed a hierarchized and uniform structure of courts of appeal, and tended to prioritize classical texts over local custom, thus helped to bring about significant extensions in the influence of orthodox Brahmans and Muslim religious experts and practices.
Declare your religion
It needs to be noted, further, that the legal changes made it increasingly incumbent for people to declare themselves definitively as Hindu or Muslim in numerous everyday disputes. In this sense, the impact of law on the consolidation of religious distinctions was probably greater than that of the census—which was, after all, only a decennial affair.
The codified and communally bifurcated structures of colonial personal or family law also set the terms for indigenous middle-class religious and social reform efforts: from Rammohan Roy—the first major modern Indian reformer — onwards. Each reformer directed his efforts only at his own community.
Textual support from the scriptures had to be found if changes, such as a ban on widow immolation and the sanctioning of widow marriage, were to be made legal. Public spheres that emerged through debates around questions of reform thus remained trapped in bifurcated Hindu and Muslim domains.
Protecting caste and patriarchy
Instances abound of British Indian civil courts modifying local customs through an application of brahmanic texts, in the process frequently consolidating and providing a legal basis to caste and patriarchy. In 1864, for instance, the Bombay High Court struck down a local practice whereby a deserted wife could marry again, on the grounds that "such a caste custom, even it be proved to exist, is invalid, as being entirely opposed to the spirit of the Hindu law." Restrictions on inter-caste marriages were similarly made more rigorous. The colonial shoring-up of caste hierarchy and discipline also took a second form. Courts of civil law recognized castes as being to some extent "self-governing" bodies that had powers to make and enforce rules of their own. The social boycott of recalcitrant members (nai-dhobi bandh, in North Indian parlance) was, therefore, considered non-justiciable.
Yet courts did intervene at times—with a systematic bias towards the preservation of high-caste privilege. The exclusion of lower castes from temples was upheld in Bombay in 1883, defending Chitpavan Brahmin privilege; by the Privy Council in 1908, rejecting Shanar (Nadar) claims to the wearing of the breast cloth by their women; and in Nagpur in 1924, when Mahars were convicted for entering a village temple enclosure.
As late as 1945 a Madras court ordered low-caste Ezhavas, who had bathed in a tank adjoining a temple used by dominant caste Nairs, to pay the costs of the necessary "purificatory" ritual. By this time, judges and lawyers in Indian courts would have been overwhelmingly Indian and predominantly high caste.
Excerpted with permission from Modern Times: India 1880s–1950s, by Sumit Sarkar, Permanent Black