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AnY law or legal system could be the symptom or the cause of both order and disorder, and of justice and injustice. The development of what came to be known as the Anglo-Indian law was a long tortuous process, often involving contradictions in theory and practice. This book is a study of the making of colonial law in India. It presents a hitherto unattempted survey of social legislation by the East India Company during the late 18th and early 19th century, the various influences that went into its making, and the debates and dilemmas circling them. The cause and effects of English law in India has produced a long, serious debate among scholars and political activists. Noted historian B. Cohn concluded that "judicial reforms not only banished Hindu and Muslim law officers from the courts, they also transformed Hindu law into a form of English case law", while Jawaharlal Nehru declared in a parliamentary speech that "British law had suppressed dynamic elements within Hindu society thereby making change possible only by legislation". For others, British law in India was the very embodiment of modernity and individual freedom, without which a civil society would have been impossible. Whatever your personal opinion may be, this book is a must for all readers as it neatly and dispassionately surveys both sides of the argument.
Initially, the Company decided to interfere as little as possible with the indigenous laws and social customs. In 1827, it decreed that in case of a dispute between people of two different faiths or castes, the law of the defendant would prevail. While, in the absence of any specific law, the formula of "justice, equity and good conscience" would come into play. It was only in 1790 that the Company also acquired the adminstration of criminal justice. From 1790 to 1860, the Company declared Muslim criminal law as the law of the land except in Bombay where Hindu criminal law was reserved for the Hindus. The Company laboured hard to evolve a more egalitarian structure of law, some of its important innovations being removal of the exemption of Brahims from capital punishment, removal of the inability of woman and slaves to stand as witness against their masters, and allowing the state to prosecute a murderer regardless of the will of the victim. In 1850, it enacted the removal of the Caste Disability Act. The importance of such vital, egalitarian innovations can hardly be overestimated, and they are of relevance to us even in our own times. With the successful completion of Industrial Revolution in Britain and victory in Napoleanic wars, the Company found a new confidence to deal with the indigenous society and its legal structures. Also, the intellectual scene in the early 19th century Europe was dominated by the social philosophies like Utilitarianism, free trade regimes, active Evangelicalism and Social Darwinists who all supported active intervention by the State in all realms of Indian society. The Evangelicals argued that English law would serve as the foundation of missionary work in India, the supporters of the free trade policy argued that development of tsrade was only possible when it was supplemented by English law, while both the Utilitarians and Social Darwinists argued that it was liable for any government to get involve into some sort of social engineering for the own good of society. All these diverse currents came together and rallied for the implementation of English law in India. In the coming decades, the Company acquired more and more legislative powers, which was used for the implementation of various sorts of social legislations. Thagi, dacoti and sorcery were declared illegal, although Thagi laws also provided the unfortunate model for later legislation against ‘Criminal Tribes’, where guilt was proven not by actual transgression of law but by birth. Law was also used as a weapon against sati, child sacrifice, and female infanticide and as an instrument of social progress, whereby rights of coolies, slaves and emigrant workers were recorded. The author’s basic
argument is that the Company’s social legislation was inspired either
by the ideal of "public instruction" or by that of
"public justice", and the law was not used as an instrument to
control and rule the native. In it, the book attacks the various
positions of nationalists, post-Marxists, post-Structuralists and
subaltern historians. Deeply insightful and engaging, this book would be
of interest for students and academics of history, politics and legal
studies.
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India
in the 18th century did not have any universally accepted legal code.
Rather, Indians used multiple legal traditions. Not only the Hindus,
Muslims, Parsees, Jains, Jews and tribals followed their own legal and
social customs, within Mahomedans, Shia’s and Sunni’s too followed
different law codes. Hindus of different regions also followed different
social customs. How Company law and Company courts dealt with this huge
diversity of legal codes and social customs is an interesting study.