Anglo-Hindu law

Anglo-Hindu law refers to the laws enacted during the British colonial era, which applied to the Hindus, Buddhists, Jains and Sikhs of British India.[1]

The first phase of Anglo-Hindu law started in 1772,[2] and lasted till 1864, where translation of some ancient Indian texts along with textual intepretation provided by British court appointed Hindu Pandits were the basis of Anglo-Hindu law, mirroring Anglo-Muslim law extracted from Quran and interpreted by Muslim Qadis for Indian Muslims.[3][4] The second phase of Anglo-Hindu law started in 1864, and ended in 1947, during which a written legal code was adopted, and the Hindu Pandits along with Muslim Qadis were dismissed due to growing inconsistencies in interpretation of texts and suspicions of corruption.[4] Anglo-Hindu law was expanded with a series of British parliament Acts between 1828 and 1947, that was based on political consensus rather than religious texts.[5][6]

History

In 18th century, the earliest British of the East India Company acted as agents of the Mughal emperor. As the British colonial rule took over the political and administrative powers in India, it was faced with various state responsibilities such as legislative and judiciary functions.[3] The East India Company, and later the British Crown, sought profits for its British shareholders through trade as well as sought to maintain effective political control with minimal military engagement.[7] The administration pursued a path of least resistance, relying upon co-opted local intermediaries that were mostly Muslims and some Hindus in various princely states.[7] The British exercised power by avoiding interference and adapting to law practices as explained by the local intermediaries.[8] The colonial state thus sustained what were essentially pre-colonial religious and political law and conflicts, well into the late nineteenth century.[3][7]

That in all suits regarding inheritance, marriage, caste and other religious usages or institutions, the law of the Koran with respect to Mahometans, and those of the Shaster with respect to Gentoos shall be invariably be adhered to.

— Warren Hastings, August 15, 1772[9]

For Muslims of India, the code of Muslim law was readily available in al-Hidaya and Fatawa-i Alamgiri written under sponsorship of Aurangzeb. For Hindus and other non-Muslims such as Buddhists, Sikhs, Jains, Parsis and Tribal people, this information was unavailable.[3] The British colonial officials, for practice, attempted to extract from the Dharmaśāstra, the English categories of law and religion for the purposes of colonial administration.[10][11]

The early period of Anglo-Hindu Law (1772–1828) was structured along the lines of Muslim law practice. It included the extracted portions of law from one Dharmaśāstra by British colonial government appointed scholars (especially Jones, Henry Thomas Colebrooke, Sutherland, and Borrodaile) in a manner similar to Islamic al-Hidaya and Fatawa-i Alamgiri.[4][12][13] It also included the use of court pandits in British courts to aid British judges in interpreting Shastras just like Qadis (Maulavis) for interpreting the Islamic law.[4]

The arrival of William Bentinck as the Governor-General of British India in 1828, marked a shift towards universal civil code, whose administration emphasized same law for all human beings, individualism and equal treatment to help liberate, empower and end social practices among Hindus and Muslims of India that had received much public coverage in Britain through the publications of Christian missionaries and individuals such as Thomas Macaulay.[14]

Governor-General Dalhousie, in 1848, extended this trend and stated his policy that the law must "treat all natives much the same manner". Over time, between 1828-1855, a series of British parliamentary acts were passed to revise the Anglo-Hindu and Anglo-Muslim laws, such as those relating to the right to religious conversion, widow re-marriage, and right to create wills for inheritance.[14] In 1832, the British colonial government abolished accepting religious fatwa as a source of law.[15] In 1835, the British began creating a criminal code that would replace the existing criminal code which was a complex conflicting mixture of laws derived from Muslim texts (Quran) and Hindu texts (Shastras), and this common criminal code was ready by 1855.[15] These changes were welcomed by Hindu law reform movement, but considered abrogating religion-defined rules within the Muslim law. The changes triggered discontent, call for jihad and religious war, and became partly responsible for the 1857 Indian revolt against the British rule.[16][17]

In 1864, after the East India Company was dissolved and India became a formal part of the British Empire, Anglo-Hindu law entered into a second phase (1864–1947), one in which British colonial courts in India relied less on the Muslim Qadis and Hindu Pandits for determining the respective religious laws, and relied more on a written law.[14] A universal criminal code for India was adopted in 1864, the expanded to include procedural and commercial code by 1882, which overruled pre-existing Anglo-Hindu and Anglo-Muslim laws.[15] However, the personal laws for Muslims remained sharia-based, while the Anglo-Hindu law was enacted independent of any text on matters such as marriage, divorce, inheritance and the Anglo-Hindu law covered all Hindus, Jains, Sikhs and Buddhists in India.[18] In 1872, the British crown enacted the Indian Christian Marriage Act which covered marriage, divorce and alimony laws for Indian Christians of all denominations except the Roman Catholics.[19]

The development of legal pluralism, that is separate law based on individual's religion was controversial in India, from the very start.[9]

Sources of Anglo-Hindu law

John Mayne, in 1910, wrote that the classical Hindu law has the oldest pedigree of any known system of jurisprudence.[20] Mayne noted that while being ancient, the conflicting texts on almost every question presents a great difficulty in deciding what the classical Hindu law was. As more literature emerges, and is translated or interpreted, Mayne noted that the conflict between the texts on every matter of law has multiplied, and that there is a lack of consensus between the Western legal scholars resident in India.[20]

Mayne and others used the Smriti to extract elements of Anglo-Hindu law.[21] Sir William Jones translated the Manu Smriti into English, and it was largely the initial basis of Anglo-Hindu law.[22]

As new literature, such as Naradasmriti and Mitakshara were discovered, disagreements between the smritis became difficult to resolve. Later writers assumed that the Smritis constituted a single body of law, one part supplementing the other and every part capable of being reconciled with the other.[23][24] Regional differences in the texts made the situation more complex.[25][26]

Digests

Two digests were made under European influence. The Vivadarnava Setu was compiled at the request of Warren Hastings and is commonly known as Halhed's Gentoo Code. The Vivada Bhangarnava was compiled at the request of Sir William Jones by Jagannatha Turkapunchanana and translated by Mr. Colebrooke. It is commonly referred to as Jagannatha's or Colebrooke's Digest. The Gentoo Code, in its English translation is "worthless"[27] because Halhed translated it from Persian, not from Sanskrit. This was not the case for Colebrooke's Digest.[28]

The code and its development

Colonial Hindu legal code marks a large span of nearly two-hundred years, beginning in 1772 and ending in 1947. This time period can be split into two main phases. The first phase, starting in 1772 and ending in 1864, is marked with three main proponents that include the translations of the dharmasastras by the British scholar administrators, the use of court pandits to define laws and rules, and the rise of case law. The second phase, starting in 1864 and ending in 1947, is marked by the dismissal of court pandits, rise of the legislative processes, and a codified law system.[29][30]

Translation of sources

The British were under the conviction that all Indian traditions were based on texts and ignored the tradition's customary significance. Furthermore, they thought that different commentaries and interpretations could be systematically sorted out by school and region. This led to the "objectification" of India, where the translation of the law code of India rendered it to more colonization.[31] The British cherrypicked the conflicting codes in ancient texts to assist colonial aims, through translation.[32]

Warren Hasting's plan of 1772 motivated the British in India to learn Sanskrit as it was necessary for them to govern Bengal. In Hasting's plan Indians were to be governed by Indian principles, particularly in relation to the law.[33] This collection of legal code, picked out from ancient texts of India, came to be known as Anglo-Hindu law. Hastings was aware that British law was too technical, complicated and inappropriate for the conditions in India. In 1774, Hastings wrote to the Lord Chief Justice denying the idea that India was ruled by nothing more than "arbitrary wills, or uninstructed judgments, or their temporary rulers". Hastings was confident that the Hindus and other original inhabitants of India knew written laws, and these were to be found in ancient Sanskrit texts. Initially, no European in Calcutta knew Sanskrit so Hindu pandits' were hired for the job. The original Sanskrit text was translated into a local language, which was then ultimately re-translated into English. Chains of translations were quite common and negatively impacted the value of the original text. The translation, completed by N.B. Halhed, was published in 1776 as "A Code of Gentoo Laws"; or "Ordinations of the Pundits".[34] The code was used in the East India Company's courts until the early 19th century.[35]

Warren Hastings' Plan of 1772

Warren Hastings was appointed under a new parliamentary act in 1772 to the newly created position of governor-general and was instructed by the Court of Directors to stabilize the governance of the Bengal territories. Hastings' plan for the better administration of Bengal was centered on British officers being designated a "collector" (Cohn, 1996, pg. 60). The collector would be assigned to a defined area (district) with provincial boundaries and would have mixed executive and judicial power in these areas. Hastings is a very significant figure in the realm of British Imperialism; he was the man who knew the natives and who was to represent the forces of law and order.

He maintained that the natives had an effective administration structure consonant with Indian theory and practice. Though it was clearly not based on European principles, he premised his plan on this notion. Unfortunately, during the fifty years leading up to Hastings' plan, the Bengali system had nearly collapsed. Fortunately, Hastings was more than qualified to essentially start anew. He had a European education and for the first fifteen years of his career, he was stationed near the court of the last effective provincial governors of Bengal. Hastings knew how an Indian state functioned and believed that it was the textual tradition that was relevant to developing British administrative institutions.

Hastings' plan called for two courts. One court dealt with revenue and civil litigation and was called the court of Dewani. The other court dealt with internal order and criminal law and was called the Faujdari court. The "collector", as mentioned above, acted as a judge as he established the facts in the case based on testimony, most commonly depositions from the witnesses, and the documentary evidence was put before the court. His assistant (dewan) and a pandit then found the law that was applicable to the case. Legal specialists, or law professors, interpreted the codes in the legal texts and provided authoritative decisions on the applicable codes. This was the basis for Anglo-Hindu case law. Hastings' was responsible for rejecting the despotic model of Indian law as he stressed the importance of utilizing "Indian law" throughout his career.

Colebrooke's Two Schools of Law

Colebrooke was appointed to the East India Company in 1782. He was skilled at Sanskrit and developed his own conception of the nature and function of Hindu law. Colebrooke led the English in fixing an interpretation of variation in legal texts and this eventually became standard in the British courts in India. He suggested that regional variations or differences existed in India, leading to various interpretations of the same text.

The term "school of law" as it applies to legal opinions of India was first used by Colebrooke.[36] Colebrooke established only two schools that were marked by a vital difference of opinion: those who follow the Mitakshara and those who follow the Daya Bhaga.[37] The Daya Bhaga and the Mitakshara differ in the most vital points[38] because each applied different principles. First, the Daya Bhaga treated religious efficacy as the ruling canon in determining the order of succession, rejecting the preference of agnates to cognates. Secondly, the Daya Bhaga denies the doctrine that property is by birth, the cornerstone of the joint family system. Thirdly, the brothers of the joint family system in the Daya Bhaga recognize their right to dispose of their shares at their pleasure. Fourthly, the Daya Bhaga recognizes the right of a widow to succeed her husband's share.[39]

Colebrooke's assumed that the commentaries on Hindu legal texts were the works of "lawyers, juriscouncils and lawgivers", and that these texts were actual law of India before the arrival of Islam, an assumption later scholars found as flawed.[40] Moreover, the British made a false analogy between Hindu law and Muslim law. The British were familiar with the latter, from other British colonies in Africa and the Middle East, as well as having initially worked as agents of the rulers of Mughal Empire. As a result, Colebrooke sought from Hindu texts and yielded a Hindu law to match what were thought of as the schools of Muslim law.[41]

In Colebrooke's view each school had fixed "doctrines" and English judges therefore needed access to the reasons and arguments by which each school supported their doctrine. When Indian scholars could not provide the texts that demonstrated this, European methods were used. After Jones announced that he intended to provide Hindus with their own laws through the mediation of English judges assisted by court appointed pandits, a legal code was in practice. The British sought consistency over time and this created a case law based on precedent.[42]

Jones' Digest

Sir William Jones was appointed judge in the Supreme Court of Calcutta in 1783. He had studied Persian and Arabic at Oxford and had published a number of translations. Additionally, Jones had an active political career and was a very influential figure of the time. After beginning his judicial career in India he found Halhed's code to be more curious than it was useful. Though he had no intention of ever learning Sanskrit, reacting to the defectiveness of the available translations, he became motivated to do so. By 1786, Jones' Sanskrit was good enough to decide between conflicting opinions of his pandits by reading the appropriate translation of the appropriate text. He was able to discern whose interpretation of the law was correct.[43]

Jones believed there was a fixed body of laws and codes that had been objects of corruption over time. He wanted to provide the British courts in India, the Crown and the East India Company with a basis on which decisions could be rendered consonant with a pure version of Hindu law. Thus, believed Jones, the Anglo-Hindu law could become consistent and fair.[44]

By 1787, Jones had created a plan for the administration of justice in India that reflected the Indian's own principles of jurisprudence. He envisioned a digest (translation completed by Colebrooke) complete with Hindu and Muslim law on the subjects of contracts and inheritances. Jones plan was to find and fix a Hindu civil law with the topics that affected the ownership and transmission of property.[45]

In 1788, Jones requested government support from his plan by reiterating to Cornwallis that it would establish a standard of justice with principles and rules accessible to the English. Cornwallis agreed, and from 1788 until his death in 1794 Jones devoted his time to what would become "The Digest of Hindu Law on Contracts and Successions". By the time of his death he had compiled the Digest in Sanskrit and Arabic and had begun translating them to English. Colebrooke completed the translation in 1797.[46]

Other Anglo-Hindu law manuals

The digests and manuals that followed Halhed's contained more substance and covered more topics of Hindu law, simply because scholars acquired more texts and regional language skills over time. Sir Thomas Strange was the first Chief Justice of the Supreme Court of Madras from 1801 to 1817. He, in 1825, published a manual of Hindu law.[47] Other sources on Hindu Law include:

  1. Mayne, John Dawson. 1906. A Treatise on Hindu Law and Usage
  2. Aiyar, Nandivada R. Narasimha. 1893 The Principles of Hindu Law
  3. Stokes, Whitley. 1887. The Anglo-Indian Codes
  4. Grady, Standish Grove. 1871. A Manual of Hindu Law
  5. Strange, Thomas Andrew. 1830. Hindu Law (This is a unique text in so far as it addresses the opinions of the pandits in a question and answer format.)
  6. Coghlan, William Mant. 1876. An Epitome of Some Hindu Law Cases
  7. Rattigan, William Henry. 1871. Select Cases in Hindu Law Decided by Her Majesty's Privy Council and the Superior Courts in India

Case law

Hindu law was codified by the British in multiple ways: translation, case law, and enactment of various laws based on debate rather than texts. Legislation came to be the strongest source of law in India in so far as it held the highest jurisdiction when sources conflicted.[48][49] Examples include,

Timeline of Court System

The High Courts of British India

The three High Courts of Bombay, Calcutta, and Madras were established in the three Presidency towns by Letters Patent from Queen Victoria. Before the Indian High Courts Act of 1961, all three Presidencies had Supreme Courts that were in charge of administering justice. Several other High Courts were established during British rule such as the Allahabad High Court and Karnataka High Court, established in 1866 and 1884, respectively.

Judicial Committee of the Privy Council

The Judicial Committee of the Privy Council served as the highest court of appeals for Anglo-Hindu law and British Indian law. The Privy Council, located in London, did not only handle Indian appeal cases, its jurisdiction spanned throughout many parts of the British Empire. With regards to India, the Privy Council was successful at infusing English concepts and principles into the British Indian legal system and they thus became an integral part of Indian law.

The right of appeal to the Judicial Committee of the Privy Council was retained after Indian independence, but terminated when the Abolition of Privy Council Jurisdiction Act 1949 came into force on 26 January 1950, when the Republic of India was declared. The Federal Court of India was replaced by the Supreme Court of India.

See also

Notes

  1. ↑ Ludo Rocher (1972), Indian response to Anglo-Hindu law, Journal of the American Oriental Society, 92(3), pages 419-424
  2. ↑ Rosane Rocher (2010), Hinduism and Law: An Introduction (Editors: Lubin and Davis), Cambridge University Press, ISBN 978-0521716260, page 78
  3. 1 2 3 4 Tomothy Lubin et al (2010), Hinduism and Law: An Introduction (Editors: Lubin and Davis), Cambridge University Press, ISBN 978-0521716260, Chapter 1
  4. 1 2 3 4 Michael Anderson (1995), Institutions and Ideologies: A SOAS South Asia Reader (Studies in Asian Topics, Editors: David Arnold, Peter Robb), Routledge, ISBN 978-0700702848, Chapter 10
  5. ↑ Bernard Cohn, Colonialism and its Forms of Knowledge. Ch 3
  6. ↑ Rosane Rocher (2010), Hinduism and Law: An Introduction (Editors: Lubin and Davis), Cambridge University Press, ISBN 978-0521716260, pages 78-89
  7. 1 2 3 Washbrook, D. A. (1981). "Law, State and Agrarian Society in Colonial India". Modern Asian Studies. 15 (3): 649–721. doi:10.1017/s0026749x00008714. JSTOR 312295.
  8. ↑ Kugle, Scott Alan (May 2001). "Framed, Blamed and Renamed: The Recasting of Islamic Jurisprudence in Colonial South Asia". Modern Asian Studies. Cambridge University Press. 35 (2): 257–313. JSTOR 313119.
  9. 1 2 Rocher, Ludo (July–September 1972). "Indian Response to Anglo-Hindu Law". Journal of the American Oriental Society. 92 (3): 419–424. doi:10.2307/600567. JSTOR 600567.
  10. ↑ Ludo Rocher, "Hindu Law and Religion: Where to draw the line?" in Malik Ram Felicitation Volume. ed. S.A.J. Zaidi (New Delhi, 1972), 190–1.
  11. ↑ J.D.M. Derrett, Religion, Law, and the State in India (London: Faber, 1968), 96; For a related distinction between religious and secular law in Dharmaśāstra, see Lubin, Timothy (2007). "Punishment and Expiation: Overlapping Domains in Brahmanical Law". Indologica Taurinensia. 33: 93–122.
  12. ↑ K Ewing (1988), Sharia and ambiguity in South Asian Islam, University of California Press, ISBN 978-0520055759
  13. ↑ A digest of Moohummudan law on the subjects to which it is usually applied by British courts of justice in India Neil Baillie, Smith, Elder & Co. London
  14. 1 2 3 Susanne Hoeber Rudolph; Lloyd I. Rudolph (August 2000). "Living with Difference in India". The Political Quarterly. Wiley. 71 (s1): 20–38. doi:10.1111/1467-923X.71.s1.4.
  15. 1 2 3 AK Giri (Editors: Pietro Costa and Danilo Zolo, 2007), The Rule of Law History: Theory and Criticism, Springer, ISBN 978-1402057441, pages 596-597
  16. ↑ Rosie Llewellyn-Jones (2007), The Great Uprising in India: 1857-58, Boydell & Brewer, ISBN 978-1843833048, pages 111-112
  17. ↑ David Cook (2005), Understanding Jihad, University of California Press, ISBN , pages 80-83
  18. ↑ Kunal Parker (Editor: Gerald James Larson, 2001), Religion and Personal Law in Secular India: A Call to Judgment, Indiana University Press, ISBN 0-253-33990-1, pages 184-199
  19. ↑ Chandra Mallampalli (2004), Christians and Public Life in Colonial South India: 1863-1937, Routledge, ISBN 0-415-32321-5, pages 59-64
  20. 1 2 John Dawson Mayne (1910), A Treatise on Hindu Law and Usage at Google Books, Stevens and Hynes, Harvard Law Library Series, see Preface section
  21. ↑ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 14-15
  22. ↑ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 20-22
  23. ↑ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 26-27
  24. ↑ Indian Political Thought. 1. University of California Press. 1974. p. 164. Retrieved 2015-04-06.
  25. ↑ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 27-28
  26. ↑ Mayne, John Dawson. "A treatise on Hindu law and usage". archive.org. Retrieved 2015-04-06.
  27. ↑ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 33
  28. ↑ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 33-34
  29. ↑ Cohn, Bernard. Colonialism and its Forms of Knowledge. Introduction. pp. 5-6
  30. ↑ Lariviere, Justices and Panditas: Some Ironies in the Hindu Legal Past
  31. ↑ Cohn, Bernard. Colonialism and its Forms of Knowledge. Foreword. pp. xv
  32. ↑ Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 2. pp. 20-21
  33. ↑ Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 2. pp. 26
  34. ↑ Bernard Cohn, Colonialism and its Forms of Knowledge, p. 66
  35. ↑ Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 3. pp. 67
  36. ↑ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 38
  37. ↑ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 38-39
  38. ↑ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 40
  39. ↑ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 40-41
  40. ↑ Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 3. pp. 73
  41. ↑ Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 3. pp. 74
  42. ↑ Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 3
  43. ↑ Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 3. pp. 68
  44. ↑ Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 3. pp. 69
  45. ↑ Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 3. pp. 69-71
  46. ↑ Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 3. pp. 70
  47. ↑ Strange, Thomas Andrew. A Manual of Hindu Law on the Basis of Sir Thomas Strange
  48. ↑ Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 3. pp. 71
  49. ↑ Marc Galanter, Law and Society in Modern India (Delhi: Oxford University Press, 1989)
  50. ↑ Gilchrist, R.N. (1921). Principles of Political Science. Longmans, Green and Company. p. 201.
  51. ↑ "GlobaLex - A Guide to India's Legal Research and Legal System". nyulawglobal.org. Retrieved 2014-10-01.

Sources

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