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Colonial Law

Discuss the importance of law in the shaping of a colonial state in


India in the 19th century.
Pre-colonial India was characterized by a pluralistic and fragmented
cultural, religious, and political structure in which there was no
monolithic Hindu, Muslim, or Christian authority. Multiple tribes, castes,
sects, and family groupings crossed religious and political lines, creating
a heterogeneous population that may have had a definite notion of
authority but no corresponding notion of legality. Much of the law of the
period was customary, with adjudication within segregated communities,
which gave rise to a common interpretation by outsiders that pre-colonial
India lacked law altogether. When the East India Company acquired the
right to collect revenue in Bengal, Bihar, and Orissa in 1765, the
company had to devise a new political and legal structure for the newlyacquired dominions.
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 conquest or concession. The vast territories of
India were controlled by a massive administrative structure and various
branches of which were held together by a set of laws. The British legal
system imposed on India was neither totally European in character nor
did it leave the Indian legal system untouched.
With the grant of Diwani rights in 1765, the East India Company was
given the land revenue rights and administrative rights to civil justice in
newly acquired Bengal. One of the prevailing questions faced by the
Company was the dilemma over the status of the prevailing judicial

structures in the province. It was important to decide whether the old


judicial system was to be retained or a new system, based on judicial law
should be introduced.
The judicial plan of 1772 created two chief courts for Bengal - a diwani
sadr adalat (chief civil court) and a nizamat sadr adalat (chief criminal
court). Seated in Calcutta, these two courts were supposed to act as the
court of appeal for lower civil and criminal courts sitting in the districts
of Bengal. In addition, each district was to have two courts -a mofussil
diwani adalat for the Cognizance of Civil Cause and a faujdari adalat
for the trial of all Crimes and Misdemeanours. The new judicial system
saw a curious delegation of power between Indian and European officials.
Company officials, senior council members in the chief adalat and the
district collectors were to preside over the civil courts. In the criminal
court system, which would remain a part of the nizamat branch of
government under the old Nawabi order, continuity was maintained as
Qazis and Muftis (the Muslim law officials) were to preside, despite the
fact that even these criminal courts would come under the supervision of
the Governor-General. The 1772 judicial plan was centred on the
programme to preserve indigenous laws of India. It is important to locate
the nature of the debates over Indian law that the East India company
legal reforms sought to address. It was a commonly held belief among
many British observers of India that Indians were governed by no other
principle of justice than arbitrary wills, or uninstructed Judgements.
Hastings however was critical of this view of Oriental Despotism and
argued that for both Hindus and Muslims there were extensive bodies of
legal texts and commentaries and the ancient constitution of Bengal
was very much intact. The logic of Hastings argument made it necessary
that these ancient legal texts be made accessible to the British judges.

The building up of an adequate structure of administration started taking


shape from 1793 under Cornwallis, and continued, with interruptions, the
19th century. During Cornwallis Governor Generalship important changes
were made in all the branches of administration including the judicial
system. These changes involved a divorce of revenue from civil
administration, i.e., the separation of judicial from executive functions
and the multiplication of judicial courts.
One important feature of the system of law that was erected was that
enough tolerance was displayed toward the existing traditional and
religious laws. The criminal courts did not altogether abolish the Muslim
criminal law but applied it in a somewhat modified form, so as to make it
less harsh. Similarly the civil courts also did not do away with the
customary laws which had been followed by the local people. Evidently
at this stage the East India Company was not bent upon an overhauling of
the system. Only a partial modification was attempted. The existing
institutions of justice and also revenue appropriation were not dismantled.
Another feature of the new judicial system was the establishment of a
whole network of laws through the process of enactment of laws and
codification of old laws. This was well in keeping with the 19th century
British passion for the codification of laws.
The traditional system had been based on:
Customary laws based on traditions and social practices
Religious laws based on Shastras and Shariat
Laws flowing from the will and authority of the rulers.

As against this, the British created a new system of laws. They introduced
regulations, codified the existing laws and systematised and the laws
were now open to judicial interpretations and subsequent amendment.
Through the Charter Act of 1,833, all law making authority was vested in
the Governor General-in-Council. In the same year, a Law Commission
was appointed. Headed by Lord Macaulay, it prepared the Indian Penal
Code which was applicable throughout the country. Thus, there came into
being, for the first time, a set of laws which included into its fold every
Indian.
The two main theoretical principles underlying the entire judicial system
were the notions of the Rule of Law and Equality before law.
The Rule of Law for India was an integral part of utilitarian thinking on
Law. They posited the Rule of Law as the possible solution to the three
main problems:
Tremendous discretionary power in the hands of the individuals who
were likely to misuse it
Lack of definition of individual rights, and
The existence of a large body of unwritten laws without any clear
direction.
The Rule of Law meant that the administration was now to be carried out
strictly according to certain laws which defined the rights, privileges and
obligations of the people, and not according to the personal desires of the
rulers. Even the official, and those who supervised law, were in theory,
accountable to the same set of laws and could be brought before a court
of law for violating any law. The law once formulated, could place
restrictions on the actions of the rulers. However, the laws formulated and

interpreted were such that they contained enough space for the oppression
of the people.
Equality before Law
Legal system under the British was based on the concept of equality
before law. Previously, the judicial system was based in such a way that
high-born castes got preferential treatment from the courts. Zamindars
and nobles were also not judged as harshly as the commoner.
In Companys administration, justice became quite expensive and cases
were not decided even during the lifetime of the suitors. Poor people had
to suffer during this long-drawn legal battle as the rich could turn the
laws in their favour. The protracted litigation and widespread prevalence
of corruption in the administrative machinery often led to the denial of
justice. In pre-British days, the system of justice was comparatively
informal, speedy and inexpensive. The new judicial system under the
British marked a step forward as it was based on rational and legalistic
principles. In reality total equality before law could not possibly be
implemented. However, it did bring about a national equality among
Indians.
Conclusion
However, the judicial system introduced in India did have the merit of
saving in motion the process of the unification of India. The British
formulated and used the idea of legality as an instrument of controlling
India. But in the 20th century, the same instrument of legality was to be
used by the leaders of the national movement to defend civil liberty and
right to challenge government authority within the limits of law.