Anglo-Hindu law
Encyclopedia
Anglo Hindu Law is characterized by three main features: 1.) the collection and translation of important Dharmaśāstra texts by British administrator-scholars (especially Jones, Henry Thomas Colebrooke, Sutherland, and Borrodaile) in order to "apply" the rules of such texts to Hindus which further expanded the political rule of the British, 2.) the use of court pandits in British courts to aid British judges in the interpretation
of classical Hindu law, and 3.)the proliferation of case law that resulted eventually in the "redundancy" of court pandits.
In 1864, just after India became a formal part of the British Empire, Anglo-Hindu law entered into a second phase (1864–1947). One in which the court pandits were dismissed due to the extensive case law that emerged during the first phase as well as the growing suspicion of corruption. During this time a series of parliamentary acts were passed to fix certain aspects of Anglo-Hindu law and to provide it with a legislative foundation. With the disappearance of court pandits, continual growth of case law (on topics involving questions of Anglo-Hindu law), and new legislative foundation, the relevance and interest in Dharmaśāstra as the source of law also diminished as the parliamentary codified what they believed to be Anglo-Hindu law . The gap between the idealized legal system of Dharmaśāstra and the diversity of customary law throughout British-India led to the fixing of regional customary laws by the British officials. This was done through interviews, observations, and discussions with locals. Massive volumes of customary rules that were in theory being enforced were collected throughout British-India and became part of the consultative resources of the courts.
One of the most interesting aspects of the development of Anglo-Hindu law is the warm reception it generally received in India.[10] The British felt that one of their great gifts to India was in fact a more rational system of law and it appears that a lot of Indians agreed. Law was generally not among the colonial legacies that the nationalist movement in India wanted to remove or overturn.
, but the sources described below were the most pertinent to Anglo-Hindu law in regards to translation and accessibility. Similarly, interests in dharma
as a whole were reduced throughout the Anglo-Hindu law period as the British were primarily interested in vyavahara. This is revealed in the below sources in so far as they address the interests of vyavahara
, which is precisely why these sources were utilized by the British.
and the Smriti
are considered the two great categories of ancient authority. The Sruti is that which was seen or perceived in a revelation and includes the four Vedas. The Smriti is the recollection handed down by the Rishis, or sages of antiquity. The Sruti is of divine origin while the Smriti is of human origin. Interestingly, the Sruti has little or no legal value as it contains no statements of law, though its statements of facts are occasionally referred to as conclusive evidence of legal usage. For the first knowable time, rules of conduct, distinct from instances, are seen in the Smriti. It is important to note that the Smriti falls under two written works, (1) works written in prose, or in prose and verse mixed or (2) works written wholly in verse. When the term Smriti is used those works written wholly in verse are generally meant, but it encompasses both works.
was to study the Vedas
. Many various versions of the same Veda exist and, as a result, sects/schools were formed. These were headed by distinguished teachers who taught from the various versions of the Vedas. Every department of the Vedas has its own Sutras
. Those which related to the rules of practical life, or law, were known as the Dharma-Sutras and these originated and bore the names of the teachers by whom they were actually composed or whose views they were supposed to reflect. The ancient, unchanged laws of the Hindus were in the hands of the Brahmans, found all over India, and were given financial support from the public.
then states that he received the Code from Brahma and communicated it to the ten sages. He requests Bhrigu, one of the great sages, to repeat it to the other nine who had apparently forgotten it. The remaining work is then recited by Bhrigu, not by Manu. Manu, though not an individual, was the ancestor of mankind. He was the impersonal and representative man. Sir William Jones translated the Manu Smriti
into English.
Yajnavalkya
is said to have been founded on that of Manu. It is the subject of many commentaries, most notably the Mitakshara, and is essentially the starting point of Hindu Law for applicable provinces.
and was abstracted by him form the second abridgment of Manu. The whole of Narada is marked by a modern air as compared with Manu and it differs from Manu on several specific regards. Narada places the adopted son ninth in the order of sons, while Manu places him third. According to Mayne, some of his rules for procedure seem to anticipate the English principles of special pleading.
. Its authority is applied most notably in the city and province of Benares and it heads the works that settle the law in South and West India as well. The supplementary works in Southern India, headed by the Mitakshara, are the Smriti Chandrika, the DayaVibhaga, the Sarasvati Vilasa and the Vyavahara Nirnaya. Those in Western India are the Vyavahara Mayukha and the Viramitrodaya. The Mitakshara is also the basis for the works which set out the law in Mithila
. The Mitakshara in Bengal
had no authority except when the law of the province was in harmony with the rest of India. Apararka, another noteworthy commentator with similar views to those of the Mitakshara, is of utmost authority in Kashmir
and is referred to respectfully in later digests.
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" because Halhed translated it from Persian, not from Sanskrit. This was not the case for Colebrooke's Digest.
maintained that "clear proof of usage will outweigh the written text of the law". Questions of usage arose in four different ways in India:
When questions as to usage arose, the following were observed
Colonial Hindu law 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.
. Out of this venture, settlement reports were produced on a district basis.
The British, as a result of their control, could issue commands and collect extensive amounts of information. They could then create and locate means to assess and collect taxes and maintain law and order. Moreover, the British could then identify and classify groups within Indian society, especially in regards to the elites. Many of the Brit's effects were unintended, but the transformation of the Indian languages both spoken and read was surely not.
-based case law of British tradition. Bernard Cohn calls this process "objectification" of India. Objectification involves the coding of India in ways that rendered it increasingly available for colonization. The British believed they could explore and conquer this territory through translation. They were confident that establishing their lingual equivalent could make the unknown known.
The formative period during which the British successfully began the program of appropriating Indian languages to serve as a crucial component in their construction of law took place between 1770 and 1785. During this time, an increasing amount of British officials were learning the "classical" languages of India (Sanskrit, Persian, and Arabic). This was also the period in which the British produced grammars, dictionaries, treatises, class books and translations about and from Indian languages. The mere production of these texts was indicative of the establishment of discursive formation, with the effect of converting Indian forms of knowledge into European objects. Individuals as well as knowledge were being converted into instruments of colonial rule.
The first step of this translation process was to learn the native languages of India. In order to issue commands, collect taxes, and to maintain law and order, knowledge of the native languages was required. From the onset of their rule, the British were committed to incorporating as much as possible the administrative personnel of previous regimes in India. The British during the 17th and 18th centuries viewed Sanskrit as a secret language that was "invented by the Brahmins to be a mysterious repository for their religion and philosophy". Any knowledge that the British had of the Hindus' learning and religious thought came from discussions with elites, primarily Brahmins, or from Persian translations of Sanskrit texts. 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.
But now there is rule of Dogar Family in Punjab
The code was used in the East India Company's courts until the early 19th century. Two scholars disagree about its relationship to the traditions of 18th century Bengal. Derrett argues that the topics covered were topics the Hastings believed would be useful in the district courts. Rocher argues that Sanksrit version the code was made up excerpts from a variety of authoritative sources and extensive commentary. Regardless of these viewpoints, Halhed's translation explicated Hindu thought, religion and customs in relation to establishing a policy of toleration between the British and the Indians.
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.
The term "school of law" as it applies to legal opinions of India was first used by Colebrooke. 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. The Daya Bhaga and the Mitakshara differ in the most vital points 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.
Colebrooke's conception was erroneous. He thought that the commentaries on Hindu legal texts were the works of "lawyers, juriscouncils and lawgivers"
and that they reflected the actual law of the land. Moreover, the British made a false analogy between Hindu law and Muslim law. The British were familiar with the latter for its distinct beliefs. As a result, Colebrooke yielded a symmetrical set for Hindu law to match what were thought of as the schools of Muslim law. Under this set, the Daya Bhaga and the Mitakshara were analogous to Sunni and Shia.
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. Colebrooke's solution was to supply a chronology to establish the authenticity that the texts appeared to lack. The oldest text would deem the most authoritative and authentic statement. The variation that existed amongst commentators could be controlled if one could establish as sequence of texts and trace them to an original source. Information on the history and age of authors was very imperfect in Indian texts and as such, an agreed on authoritative, fixed chronology was never established. 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 kind of case law came into being over the next forty years. It was the chain of interpretations of precedents by the English judges that in a way preserved Hindu law, as was the case in Thomas Strange's "Elements of Hindu Law".
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. If that could be made available, the Brahmans would no longer be able to rule India corruptly, as they please.
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, having received an Oxford education, was trained in English common law, which was essentially case law. Case law was flexible and subject to multiple interpretations. However, Jones believed that the Hindus had fixed usages. The object of his plan was to find and fix a Hindu civil law with the topics that affected the ownership and transmission of property.
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. H.T. Colebrooke completed the translation in 1797.
Each section, when appropriate, defines the topic of Hindu law and includes several definitions that exist within the overarching topic and includes several leading cases that pertain to the topic of law. All of the Digests, Treatises and Manuals on Hindu law take a similar approach. Some go into greater detail in describing the topic of law and/or the specific cases that fell under that law. Each includes a table of contents and a lengthy list of cases for quick reference. For additional sources on Hindu Law manuals and the like see:
Ramnath Tolapottro v. Durga Sundari Devi – Bengal
Abraham v Abraham
Venkata v. Subadra – who may give in adoption?
were administered in situations where caste had an effect on the way particular Hindu laws were to be intrepreted.
laws were administered with regards to Hindu law texts and commentaries that were relevant to each case. For instance, in medieval Korala, matrilineal adoption was widely practiced and accepted in their society. I could not find any research on whether the British administered adoption law in this way in regions like Korala, but usually the British held the belief that what was commonly practiced throughout the society was to be considered the prevailing law, and they would rule accordingly.
thus decided to create a, "commission a composition A Code of Gentoo Laws, Ordination of the Pundits". While the translations of certain digests definitely improved the judges' knowledge of Hindu laws, in the early stages the pandits were still needed to interpret and to clarify the meanings of the sources of law. The judges developed large mistrust for the pandits and many felt that these pandits were obstructing the administration of justice. Sir William Jones commented on his distrust of the pandits in a letter to Cornwallis stating, "It would be absurd and unjust to pass indiscriminate censure on so considerable a body of men; but my experience justifies me in declaring, that I could not with an easy conscience, concur on any decision, merely on the written opinion of the native lawyers, in any cause in which they could have the remotest interest in misleading the Court. This great mistrust led to a strong mission aimed at translating all of the texts and codifying the Hindu laws so that the pandits would no longer be needed in the court room. The problem with this was that Hindu law was not this simple. Lariviere, a scholar of Hindu law has stated that, "To claim that a single text, or even a series of texts, or eventual a series of decisions based on texts, would be uniformly applicable to all those who claimed to be Hindus was to misunderstand the nature of he dharmsastra and to misunderstand what it meant to be a Hindu". In 1864, the pandits were abolished from the legal process and the judges assumed total control over the administration of justice.
in India
. While the British attempted to be respectful and administer the proper religious laws to the Hindus, it couldn't help but incorporate aspects such as judicial precedent, which is a fundamental part of English common law. Over the course of time, a body of case law grew as the British administers more and more cases that pertained to Hindu law. The judicial decisions made on prior cases began to have a substantial affect on how judges viewed cases brought to the court. If the judge found a prior case (or cases) that was similar to the one he was currently adjudicating, he would likely use justify his ruling citing the prior case (or cases). The use of judicial precedent had substantial effect on Hindu law. Since the language of sacred texts was so inaccessible to English judges, many of the early case rulings may have not been correct. Many failed to understand the true nature of Hindu law and ruled in ways that they personally thought was to be the best. This goes against the idea that Brahmans and pandits, who through the deep and dedicated study of the sacred texts, were the only ones who could decipher the meaning in the context of each particular case.
Statutory interpretation
Statutory interpretation is the process by which courts interpret and apply legislation. Some amount of interpretation is always necessary when a case involves a statute. Sometimes the words of a statute have a plain and straightforward meaning. But in many cases, there is some ambiguity or...
of classical Hindu law, and 3.)the proliferation of case law that resulted eventually in the "redundancy" of court pandits.
In 1864, just after India became a formal part of the British Empire, Anglo-Hindu law entered into a second phase (1864–1947). One in which the court pandits were dismissed due to the extensive case law that emerged during the first phase as well as the growing suspicion of corruption. During this time a series of parliamentary acts were passed to fix certain aspects of Anglo-Hindu law and to provide it with a legislative foundation. With the disappearance of court pandits, continual growth of case law (on topics involving questions of Anglo-Hindu law), and new legislative foundation, the relevance and interest in Dharmaśāstra as the source of law also diminished as the parliamentary codified what they believed to be Anglo-Hindu law . The gap between the idealized legal system of Dharmaśāstra and the diversity of customary law throughout British-India led to the fixing of regional customary laws by the British officials. This was done through interviews, observations, and discussions with locals. Massive volumes of customary rules that were in theory being enforced were collected throughout British-India and became part of the consultative resources of the courts.
One of the most interesting aspects of the development of Anglo-Hindu law is the warm reception it generally received in India.[10] The British felt that one of their great gifts to India was in fact a more rational system of law and it appears that a lot of Indians agreed. Law was generally not among the colonial legacies that the nationalist movement in India wanted to remove or overturn.
Sources
The greatest difficulty in studying Hindu Law is to establish a date to which any particular statement should be referred, as chronology had absolutely no existence among Hindu writers. Every sacred text is equally true to a Hindu writer; however it is unsafe to assume that any statement of law represented an existing fact of its time. Anglo-Hindu law relied on sources that had been used previously, throughout Classical Hindu LawClassical Hindu law
Classical Hindu law is a category of Hindu law found in ancient India that traditionally begins with the transmittance of the Vedas and ends in 1772 with the adoption of "A Plan for the Administration of Justice in Bengal" by the Bengal government...
, but the sources described below were the most pertinent to Anglo-Hindu law in regards to translation and accessibility. Similarly, interests in dharma
Dharma
Dharma means Law or Natural Law and is a concept of central importance in Indian philosophy and religion. In the context of Hinduism, it refers to one's personal obligations, calling and duties, and a Hindu's dharma is affected by the person's age, caste, class, occupation, and gender...
as a whole were reduced throughout the Anglo-Hindu law period as the British were primarily interested in vyavahara. This is revealed in the below sources in so far as they address the interests of vyavahara
Vyavahara
Vyavahāra is an important concept of Hindu law denoting legal procedure. Kane defines it as follows: "When the ramifications of right conduct, that are together called dharma and that can be established with efforts have been violated, the dispute which springs from what is sought to be proved ,...
, which is precisely why these sources were utilized by the British.
Sruti and Smriti
The SrutiSruti
' , often spelled shruti or shruthi, is a term that describes the sacred texts comprising the central canon of Hinduism and is one of the three main sources of dharma and therefore is also influential within Hindu Law...
and the Smriti
Smriti
Smriti literally "that which is remembered," refers to a specific body of Hindu religious scripture, and is a codified component of Hindu customary law. Smṛti also denotes non-Śruti texts and is generally seen as secondary in authority to Śruti. The literature which comprises the Smrti was...
are considered the two great categories of ancient authority. The Sruti is that which was seen or perceived in a revelation and includes the four Vedas. The Smriti is the recollection handed down by the Rishis, or sages of antiquity. The Sruti is of divine origin while the Smriti is of human origin. Interestingly, the Sruti has little or no legal value as it contains no statements of law, though its statements of facts are occasionally referred to as conclusive evidence of legal usage. For the first knowable time, rules of conduct, distinct from instances, are seen in the Smriti. It is important to note that the Smriti falls under two written works, (1) works written in prose, or in prose and verse mixed or (2) works written wholly in verse. When the term Smriti is used those works written wholly in verse are generally meant, but it encompasses both works.
Duty of Brahmans
The primary duty of the BrahmanBrahman
In Hinduism, Brahman is the one supreme, universal Spirit that is the origin and support of the phenomenal universe. Brahman is sometimes referred to as the Absolute or Godhead which is the Divine Ground of all being...
was to study the Vedas
Vedas
The Vedas are a large body of texts originating in ancient India. Composed in Vedic Sanskrit, the texts constitute the oldest layer of Sanskrit literature and the oldest scriptures of Hinduism....
. Many various versions of the same Veda exist and, as a result, sects/schools were formed. These were headed by distinguished teachers who taught from the various versions of the Vedas. Every department of the Vedas has its own Sutras
Sutra
Sūtra is an aphorism or a collection of such aphorisms in the form of a manual. Literally it means a thread or line that holds things together and is derived from the verbal root siv-, meaning to sew , as does the medical term...
. Those which related to the rules of practical life, or law, were known as the Dharma-Sutras and these originated and bore the names of the teachers by whom they were actually composed or whose views they were supposed to reflect. The ancient, unchanged laws of the Hindus were in the hands of the Brahmans, found all over India, and were given financial support from the public.
Code of Manu
The Code of Manu has been treated by Hindu sages and commentators as being of paramount authority. This does not however prevent them from treating it as obsolete whenever situation requires. The personality of its author is mythical. The sages implore Manu to inform them of the sacred laws. ManuManu (Hinduism)
In various Hindu traditions, Manu is a title accorded to the progenitor of mankind, and also the very first brahman king to rule this earth, who saved mankind from the universal flood. He was absolutely honest which was why he was initially known as "Satyavrata"...
then states that he received the Code from Brahma and communicated it to the ten sages. He requests Bhrigu, one of the great sages, to repeat it to the other nine who had apparently forgotten it. The remaining work is then recited by Bhrigu, not by Manu. Manu, though not an individual, was the ancestor of mankind. He was the impersonal and representative man. Sir William Jones translated the Manu Smriti
Manu Smriti
' , also known as Mānava-Dharmaśāstra , is the most important and earliest metrical work of the Dharmaśāstra textual tradition of Hinduism...
into English.
Yajnavalkya
Yajnavalkya
Yajnavalkya of Mithila was a legendary sage of Vedic India, credited with the authorship of the Shatapatha Brahmana , besides Yogayajnavalkya Samhita and the Yājñavalkya Smṛti...
is said to have been founded on that of Manu. It is the subject of many commentaries, most notably the Mitakshara, and is essentially the starting point of Hindu Law for applicable provinces.
Narada Smriti
This work is ascribed to the Divine sage NaradaNarada
Narada or Narada Muni is a divine sage from the Vaisnava tradition, who plays a prominent role in a number of the Puranic texts, especially in the Bhagavata Purana, and in the Ramayana...
and was abstracted by him form the second abridgment of Manu. The whole of Narada is marked by a modern air as compared with Manu and it differs from Manu on several specific regards. Narada places the adopted son ninth in the order of sons, while Manu places him third. According to Mayne, some of his rules for procedure seem to anticipate the English principles of special pleading.
Commentators
All the works on the Smritis are admitted to possess an independent authority. One Smriti occasionally quotes another, just as one judge might cite the opinion of another judge, but every part of the work is weighted equally and is regarded as the infallible truth. 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.Mitakshara
By far the most significant of all the commentaries is that by Vijyanesvara, known as the MitaksharaMitakshara
The ' is a on the Yajnavalkya Smriti best known for its theory of "inheritance by birth." It was written by Vijñāneśvara, a scholar in the Western Chalukya court in the late eleventh and early twelfth century. Along with the Dāyabhāga, it was considered one of the main authorities on Hindu Law...
. Its authority is applied most notably in the city and province of Benares and it heads the works that settle the law in South and West India as well. The supplementary works in Southern India, headed by the Mitakshara, are the Smriti Chandrika, the DayaVibhaga, the Sarasvati Vilasa and the Vyavahara Nirnaya. Those in Western India are the Vyavahara Mayukha and the Viramitrodaya. The Mitakshara is also the basis for the works which set out the law in Mithila
Mithila
Mithila was a city in Ancient India, the capital of the Videha Kingdom. The name Mithila is also commonly used to refer to the Videha Kingdom itself, as well as to the modern-day territories that fall within the ancient boundaries of Videha...
. The Mitakshara in Bengal
Bengal
Bengal is a historical and geographical region in the northeast region of the Indian Subcontinent at the apex of the Bay of Bengal. Today, it is mainly divided between the sovereign land of People's Republic of Bangladesh and the Indian state of West Bengal, although some regions of the previous...
had no authority except when the law of the province was in harmony with the rest of India. Apararka, another noteworthy commentator with similar views to those of the Mitakshara, is of utmost authority in Kashmir
Kashmir
Kashmir is the northwestern region of the Indian subcontinent. Until the mid-19th century, the term Kashmir geographically denoted only the valley between the Great Himalayas and the Pir Panjal mountain range...
and is referred to respectfully in later digests.
Chandrika and Mimamsa
In regards to adoption, the Dattaka Chandrika and the Dattaka Mimamsa possessed an authority over other works on the same topic. This is explained by the fact that they were early accessible to English lawyers and judges because of Mr. Sutherland's translation. The two works mentioned are equally respected all over India in questions relative to the law. Where they differ, however, Dattaka Chandrika is adhered to in Bengal and by the Southern jurists while the Dattaka Mimamsa is the lawful guide in Mithila and Benares. This was accepted by the Judicial Committee in the leading Ramanad case and this contributed to the weight of these works. To read more on the idea of adoption as it related to Hindu Law see: Mayne, 1906, pp. 42.Digests
Two digests were made under European influence. The Vivadarnava Setu was compiled at the request of Warren HastingsWarren Hastings
Warren Hastings PC was the first Governor-General of India, from 1773 to 1785. He was famously accused of corruption in an impeachment in 1787, but was acquitted in 1795. He was made a Privy Councillor in 1814.-Early life:...
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
The Gentoo Code
The Gentoo Code is a legal code translated from Sanskrit to Persian by Brahmin scholars and then from Persian to English by Nathaniel Brassey Halhed, a British grammarian working for the East India Company...
, in its English translation is "worthless" because Halhed translated it from Persian, not from Sanskrit. This was not the case for Colebrooke's Digest.
Custom
Law, in the language of Manu, is grounded on immemorial custom and custom supersedes law. In order to modify the ordinary law of succession a custom had to be ancient and invariable and it had to clear and unambiguous evidence. The Privy CouncilPrivy council
A privy council is a body that advises the head of state of a nation, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the monarch's closest advisors to give confidential advice on...
maintained that "clear proof of usage will outweigh the written text of the law". Questions of usage arose in four different ways in India:
- races to whom Hindu Law had never been applied
- those who profess to follow the Hindu law generally, but who do not admit its theological developments
- races who profess submission to it as a whole and
- persons formerly bound by the Hindu Law but to whom it has become inapplicable.
When questions as to usage arose, the following were observed
- any Hindu residing in a particular province of India was prima faciePrima faciePrima facie is a Latin expression meaning on its first encounter, first blush, or at first sight. The literal translation would be "at first face", from the feminine form of primus and facies , both in the ablative case. It is used in modern legal English to signify that on first examination, a...
held to be subject to the particular doctrine of Hindu law recognized in the province, with the exception of migration - when such an original variance of law was once established, it cannot be presumed that it continues
History and Development
The term law in Westernized societies holds a much greater value than the case in the case of the colonial Hindu tradition. It was not until the 1770s when the British Empire came to colonize India that the concept of law even came into practice.Colonial Hindu law 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.
Early British Control
From the very beginning of their territorial control, the British planned on governing India by codifying and re-instituting the ruling practices that had been developed by previous institutions of rule. With that said, knowledge of history and practice of India was considered most valuable from the beginning. Beginning in the 1770s in Bengal, the British investigated the methods of revenue assessment and collection in India. From this, they developed an extensive and continuous administrative activity termed the land-settlement-process. This endeavor entailed the collection of customs and local histories, relating to the Brit's notion of land tenureLand tenure
Land tenure is the name given, particularly in common law systems, to the legal regime in which land is owned by an individual, who is said to "hold" the land . The sovereign monarch, known as The Crown, held land in its own right. All private owners are either its tenants or sub-tenants...
. Out of this venture, settlement reports were produced on a district basis.
The British, as a result of their control, could issue commands and collect extensive amounts of information. They could then create and locate means to assess and collect taxes and maintain law and order. Moreover, the British could then identify and classify groups within Indian society, especially in regards to the elites. Many of the Brit's effects were unintended, but the transformation of the Indian languages both spoken and read was surely not.
British "Translate" the 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 altering of a system of law that increasingly resembled the precedentPrecedent
In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts...
-based case law of British tradition. Bernard Cohn calls this process "objectification" of India. Objectification involves the coding of India in ways that rendered it increasingly available for colonization. The British believed they could explore and conquer this territory through translation. They were confident that establishing their lingual equivalent could make the unknown known.
The formative period during which the British successfully began the program of appropriating Indian languages to serve as a crucial component in their construction of law took place between 1770 and 1785. During this time, an increasing amount of British officials were learning the "classical" languages of India (Sanskrit, Persian, and Arabic). This was also the period in which the British produced grammars, dictionaries, treatises, class books and translations about and from Indian languages. The mere production of these texts was indicative of the establishment of discursive formation, with the effect of converting Indian forms of knowledge into European objects. Individuals as well as knowledge were being converted into instruments of colonial rule.
The first step of this translation process was to learn the native languages of India. In order to issue commands, collect taxes, and to maintain law and order, knowledge of the native languages was required. From the onset of their rule, the British were committed to incorporating as much as possible the administrative personnel of previous regimes in India. The British during the 17th and 18th centuries viewed Sanskrit as a secret language that was "invented by the Brahmins to be a mysterious repository for their religion and philosophy". Any knowledge that the British had of the Hindus' learning and religious thought came from discussions with elites, primarily Brahmins, or from Persian translations of Sanskrit texts. 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.
But now there is rule of Dogar Family in Punjab
Warren Hastings' model of 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 in the case of the Hindus unchanged and ancient laws at that. For Hastings, Hindu law relied on an ancient constitution, and because the British were then sitting as judges in the civil courts passing judgments on real disputes, the British required access to it. The East India Company's district had to have a means of authoritatively establishing the content of Hindu law on all disputes concerning property, inheritance, marriage and caste and on all claims of debt, accounts, contracts, partnerships and demands of rent. Hastings persuaded eleven of the most respectable pandits in Bengal to compile a code from the shastric literature on Hindu law that could be translated into English. Unfortunately, at the time no European in Calcutta knew Sanskrit so the pandits' compilation first had to be translated into Persian and then 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".The code was used in the East India Company's courts until the early 19th century. Two scholars disagree about its relationship to the traditions of 18th century Bengal. Derrett argues that the topics covered were topics the Hastings believed would be useful in the district courts. Rocher argues that Sanksrit version the code was made up excerpts from a variety of authoritative sources and extensive commentary. Regardless of these viewpoints, Halhed's translation explicated Hindu thought, religion and customs in relation to establishing a policy of toleration between the British and the Indians.
Warren Hastings' Plan of 1772
Warren HastingsWarren Hastings
Warren Hastings PC was the first Governor-General of India, from 1773 to 1785. He was famously accused of corruption in an impeachment in 1787, but was acquitted in 1795. He was made a Privy Councillor in 1814.-Early life:...
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
Bengal
Bengal is a historical and geographical region in the northeast region of the Indian Subcontinent at the apex of the Bay of Bengal. Today, it is mainly divided between the sovereign land of People's Republic of Bangladesh and the Indian state of West Bengal, although some regions of the previous...
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 very 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. 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. The Daya Bhaga and the Mitakshara differ in the most vital points 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.
Colebrooke's conception was erroneous. He thought that the commentaries on Hindu legal texts were the works of "lawyers, juriscouncils and lawgivers"
and that they reflected the actual law of the land. Moreover, the British made a false analogy between Hindu law and Muslim law. The British were familiar with the latter for its distinct beliefs. As a result, Colebrooke yielded a symmetrical set for Hindu law to match what were thought of as the schools of Muslim law. Under this set, the Daya Bhaga and the Mitakshara were analogous to Sunni and Shia.
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. Colebrooke's solution was to supply a chronology to establish the authenticity that the texts appeared to lack. The oldest text would deem the most authoritative and authentic statement. The variation that existed amongst commentators could be controlled if one could establish as sequence of texts and trace them to an original source. Information on the history and age of authors was very imperfect in Indian texts and as such, an agreed on authoritative, fixed chronology was never established. 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 kind of case law came into being over the next forty years. It was the chain of interpretations of precedents by the English judges that in a way preserved Hindu law, as was the case in Thomas Strange's "Elements of Hindu Law".
Jones' Digest
Sir William Jones was appointed judge in the Supreme Court of Judicature in 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 differing opinions of his pandits by reading the appropriate translation of the appropriate text. He was able to whose interpretation of the law was correct.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. If that could be made available, the Brahmans would no longer be able to rule India corruptly, as they please.
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, having received an Oxford education, was trained in English common law, which was essentially case law. Case law was flexible and subject to multiple interpretations. However, Jones believed that the Hindus had fixed usages. The object of his plan was to find and fix a Hindu civil law with the topics that affected the ownership and transmission of property.
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. H.T. Colebrooke completed the translation in 1797.
Strange's Hindu Law Manual
The digests and manuals that followed Halhed's contained more substance and covered more topics of Hindu law, simply because scholars acquired more knowledge over time. Sir Thomas Andrew Lumisden Strange was the first Chief Justice of the Supreme Court of Fort St. George (Madras) from 1801 to 1817. The first edition of Strange's "Elements of Hindu Law" waspublished in 1825.Each section, when appropriate, defines the topic of Hindu law and includes several definitions that exist within the overarching topic and includes several leading cases that pertain to the topic of law. All of the Digests, Treatises and Manuals on Hindu law take a similar approach. Some go into greater detail in describing the topic of law and/or the specific cases that fell under that law. Each includes a table of contents and a lengthy list of cases for quick reference. For additional sources on Hindu Law manuals and the like see:
- Mayne, John Dawson. 1906. A Treatise on Hindu Law and Usage
- Aiyar, Nandivada R. Narasimha. 1893 The Principles of Hindu Law
- Stokes, Whitley. 1887. The Anglo-Indian Codes
- Grady, Standish Grove. 1871. A Manual of Hindu Law
- 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.)
- Coghlan, William Mant. 1876. An Epitome of Some Hindu Law Cases
- 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, documentation, recognition of customary law, and implementation of various Acts. Legislation came to be the strongest source of law in India in so far as it held the highest jurisdiction when sources conflicted. Despite British efforts to avoid the inevitability of English law becoming the law of India, the inevitable proved stronger. Case law was a historically derived law based on the finding of precedent. It was flexible and, for good or for worse, subject to multiple interpretations by judges and lawyers. The following cases illustrate common legal practice of Hindu issues as facilitated by the British.Marriage Case
Binda v. Kaunsilia – the right of conjugal cohabitation- Justice Syed MahmoodSyed MahmoodJustice Syed Mahmood was Puisne Judge of the High Court, North-Western Provinces from 1887 to 1893, after having served in the High Court in a temporary capacity as officiating judge on four previous periods since 1882...
delivered the following judgment:- It was the duty of a wife to live with her husband in conjugal cohabitation and it was the duty of the husband to maintain and support her and protect her
- These rights are not based on moral precepts but on texts which impose upon the husband the duty of maintaining his wife and dismiss other obligations
- Enforcement of conjugal right by Judicial authority did not fall beyond the scope of the king's functions, and therefore not beyond the jurisdiction of the Civil courts
- The jural relation created by marriage involves the continuing obligation of conjugal cohabitation upon the husband and wife
- An unlawful infringement of the obligation amounted to a continuing wrong in breach of the obligation
Inheritance Cases
Tarachand v. Reeb Ram- The Madras High Court discussed the origin and binding force of customary law
- Manu declared law established by custom of more weight in the Hindu Law than in other systems
- Extends law to particular families
- King upheld the rules of families so far as they are not repugnant to the law of God
- Particular customs not repugnant to the law should be upheld
- Thibaut laid down he principles of jurists as to customary law
- Acts of individuals are not the foundation of the law but the signs of the existence of a common idea of law
- Acts of parties capable of making law
- Proof of conduct can amount to a mutual agreement to adopt particular customs
- Acts of individuals are not the foundation of the law but the signs of the existence of a common idea of law
- Manu declared law established by custom of more weight in the Hindu Law than in other systems
- No evidence of the acts or opinions in this case could establish what would not be law, but the Privy Council observed, incidentally that, there does not exist in any persons the power of making laws of inheritance for themselves
- In this case whereby the persons involved were subject to the Hindu law of inheritance, it is not open to them to reject any aspect of it, and thus it was ruled that the Hindu law of partition did apply to this family
Ramnath Tolapottro v. Durga Sundari Devi – Bengal
- chastity was a condition precedent to the taking not only of her husband's property but it was a condition precedent to the taking of the heritage by all female heirs
- it was held that the unchastity of the mother before the death of a her son precluded the mother from taking the inheritance
- case decided three special rules relative to the succession of the widow deduced from the Dayabhaga:
- an unchaste widow does not inherit her husband's property
- when the widow inherits, she can enjoy the estate only with moderation
- she cannot exercise the ordinary rights of alienation of that of a male owner
- after her death, her heirs do not succeed the property
- the heirs of the last owner do
Adoption Cases
Collector of Madura v. Muthu Ramalinga Sethupathy (Ramanad case)- Privy Council held that where the husband's family is undivided, the father of the widow's deceased husband (if living), or at least the surviving brothers, would be the persons whose consent was necessary
- But, where the deceased husband was separate in estate, the consent of every kinsman was not essential
- There should be evidence of the assent of kinsman as the act is done in the proper performance of a religious duty
- the reason for the assent of kinsman is the incapacity of women for independence
- There should be evidence of the assent of kinsman as the act is done in the proper performance of a religious duty
Abraham v Abraham
- the Privy Council observed that upon the conversion to a Hindu to Christianity the Hindu Law ceases to have any continuing obligatory force on the convert
- In regards to heirship, the convert could renounce the old law by which he was bound or abide by the old law even though he has renounced his old religion
- this decision was passed before the Indian Succession actand the native Christians were then governed by the Act
- In regards to heirship, the convert could renounce the old law by which he was bound or abide by the old law even though he has renounced his old religion
- However, parcenership had to governend by the Hindu law
Venkata v. Subadra – who may give in adoption?
- it was decided that a widow is competent to give in adoption whenever the husband is legally competent to give
- this case developed three principles to regulate the power to give in adoption:
- the son is the joint property of the father and the mother for the purpose of a gift in adoption
- the mother has the predominant interest or potential voice when competition between the father and mother existed
- the property goes to the mother after the father's death
- this case developed three principles to regulate the power to give in adoption:
- Lordships of the Privy Council held that where there is no expressed prohibition women are considered to be independent
- They did not support the theory of implied prohibition in the absence of express authority in regard to the gift of son in adoption
British Administration of Hindu Personal Laws
Personal laws can be defined as a, "Part of law that deals with matters pertaining to a person and his or her family". In the case of India, personal laws also refer to the religious laws separately administered to both Muslims and Hindus. The British were quite noble in their painstaking attempts to administer the true religious law of the people they were colonizing. Theodore Goldstucker summed this up well stating, "The Indian system of jurisprudence, the system of law administered in India by the English, is of the strangest description, unparalleled in the history of the world. No government was ever called upon to legislate for so heterogeneous a community, or to combine together so many conflicting systems of law under on general administration of justice. That community includes Hindus, Mahomedans, Englishmen, Buddhists, Jews, Armenians, and Parsees."Inheritance
Inheritance laws were those that dealt with wills and succession of property with regards to those who adhered to Hinduism.Important Legislative Acts on Inheritance
- The Caste and Disabilities Removal Act of 1850
- This act abolished conditions under Ancient Hindu law that deprived the right of inheritance to those who lost their caste positions in society.
- The Indian Succession Act of 1925
- The Hindu Inheritance (Removal of Disabilities) Act of 1928
- The Hindu Law of Inheritance (Amendment) Act of 1929
- "Under this Act, the right to inheritance was created in favour of son's daughter, daughter's daughter, sister and sister's son, as heirs next after the father, but prior to the father's brother. This Act is since repealed by the Hindu Succession Act, 1956."
Caste
Laws regarding Hindu casteCaste
Caste is an elaborate and complex social system that combines elements of endogamy, occupation, culture, social class, tribal affiliation and political power. It should not be confused with race or social class, e.g. members of different castes in one society may belong to the same race, as in India...
were administered in situations where caste had an effect on the way particular Hindu laws were to be intrepreted.
Marriage
Marriage laws under Anglo-Hindu law dealt with the rights of widows, the rights of women, the right to divorce, and the minimum age that one could be in order to marry.Important Legislative Acts on Marriage
- The Hindu Widow's Remarriage Act of 1856
- Allowed widows to remarry in certain situations.
- The Native Convert's Marriage Dissolution Act of 1866
- Allowed for Hindus who had converted to Christianity to dissolve their marriage.
- The Child Marriage Restraint Act of 1929
- Restricted marriages of children below a certain age.
- The Hindu Married Women's Right to Separate Residence and Maintenance Act of 1944
- Gave special rights to Hindu married women, but was repealed by the Hindu Adoptions and Maintenance Act of 1958.
Adoption
AdoptionAdoption
Adoption is a process whereby a person assumes the parenting for another and, in so doing, permanently transfers all rights and responsibilities from the original parent or parents...
laws were administered with regards to Hindu law texts and commentaries that were relevant to each case. For instance, in medieval Korala, matrilineal adoption was widely practiced and accepted in their society. I could not find any research on whether the British administered adoption law in this way in regions like Korala, but usually the British held the belief that what was commonly practiced throughout the society was to be considered the prevailing law, and they would rule accordingly.
Courts
The court system under Anglo-Hindu law is quite difficult to summarize in a cohesive way say it was constantly evolving over the course of British rule. This meant that rather than establishing a hierarchical court system all at once, courts were sporadically established throughout India in a haphazard way, by way mostly of Charters and Parliamentary Acts made by England.Timeline of Court System
- 1726 - Charter by King George IGeorge I of Great BritainGeorge I was King of Great Britain and Ireland from 1 August 1714 until his death, and ruler of the Duchy and Electorate of Brunswick-Lüneburg in the Holy Roman Empire from 1698....
- This is where the British judicial system in India began.
- Made important changes to judicial administration in the three main Presidency towns of Bombay, Calcutta, and Madras.
- 1772 - Plan for the Administration of Justice
- Devised by General-Governor Warren HastingsWarren HastingsWarren Hastings PC was the first Governor-General of India, from 1773 to 1785. He was famously accused of corruption in an impeachment in 1787, but was acquitted in 1795. He was made a Privy Councillor in 1814.-Early life:...
- Hindu law is formally established as part of the British legal system administered in colonial India.
- "In all suits regarding inheritance, marriage, caste and other religious usages or institutions, the laws of the Koran with respect to the Mohamedans and those of Shaster with respect to the Gentoos shall invariably be adhered to" (Sec. 27 of the Administration of Justice Regulation of April 11, 1980).
- Devised by General-Governor Warren Hastings
- 1773 - The East India Company Regulating Act
- Made provision to establish Supreme Court of Judicature at Fort William at Calcutta, which would supersede the then prevalent judicial system.
- 1774 March 26: the Supreme Court of Judicature at Fort William was established.
- Supreme Court: had full power and authority to hear and determine all complaints against any of His Majesty's subjects for any crimes and also to entertain, hear and determine any suits or actions against any of His Majesty's subjects in Bengal, Biar, and Orissa.
- 1780 - The Regulating Act
- Important date because it ended the practice of applying English law to Hindus and Muslims. It required all judges to administer the Islamic and Hindu law. Before this, it was certain whether the judges would apply English or religious law in a particular case.
- 1800 - Established Supreme Court of Madras under Charter issued by King George III
- 1803 - Established Supreme Court of Bombay under Charter issued by King George III
- Replaced the Recorder's Court
- 1833 - The India Charter Act
- Called for the creation of the Indian Law Commission, that would be composed of Hindu legal experts, appointed to identify various rules under HinduismHinduismHinduism is the predominant and indigenous religious tradition of the Indian Subcontinent. Hinduism is known to its followers as , amongst many other expressions...
that could be applied to the laws and court system of British India. They were asked to make recommendations for how to consolidate or amend these laws in ways that would prevent gaps in the law.
- Called for the creation of the Indian Law Commission, that would be composed of Hindu legal experts, appointed to identify various rules under Hinduism
- 1859 - The Code of Civil Procedure and the Law of Limitation
- 1860 - The Penal Code
- 1861 - The Code of Criminal Procedure
- 1861 - The Indian High Court's Act
- "Reorganized the then prevalent judicial system in the country by abolishing the Supreme Courts at Fort William, Madras, and Bombay, and also the then existing Sadar Adalats in the Presidency Towns. The High Courts were established having civil, criminal, admiralty, vice-admiralty, testimony, intestate, and matrimonial jurisdiction, as well as original and appellate jurisdiction."
- 1909 - Government of India Act
- Allowed for Indian participation, albeit limited, in both provincially and central legislative councils. Important step because it allowed Indians, to have a bigger influence the laws that would be administered to Hindus.
- 1935 - Government of India Act
- Provisions were included for the establishment of a Federal Court, which was necessary in order to make judicial administrations in various provinces more competent between the governmental bodies themselves. This was an important step in unifying India. The Federal Court was a precursor to the Supreme Court of IndiaSupreme Court of IndiaThe Supreme Court of India is the highest judicial forum and final court of appeal as established by Part V, Chapter IV of the Constitution of India...
, which was inaugurated in 1950.
- Provisions were included for the establishment of a Federal Court, which was necessary in order to make judicial administrations in various provinces more competent between the governmental bodies themselves. This was an important step in unifying India. The Federal Court was a precursor to the Supreme Court of India
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.Privy Council
The Privy Council served as the highest court of appeals for Anglo-Hindu law and British Indian law. The Privy Council, located in England, did not only handle Indian appeal cases, its jurisdiction spanned throughout many parts of the United Kingdom. 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 Privy Council had a great effect on the Indian legal system and its influence resulted in the common law that adopted by the colonial legal system in India. "During its career as the highest court of appeals from India for the period of about 200 years, Privy Council rendered over 2,500 judgments, and till today these judgments constitute the fountain-source of law on many points in India."Role of Pandits
When the British first became interested in administering law in India, they were at a great disadvantage in terms of being able to understand and decipher the law. They failed to understand that the Hindus did not have a formal written list of laws that could be read and understood and then readily administered by the British judges. Shockingly, they came to discover that the law was much more complicated and they realized that they needed help administering justice to the Hindus. Warren HastingsWarren Hastings
Warren Hastings PC was the first Governor-General of India, from 1773 to 1785. He was famously accused of corruption in an impeachment in 1787, but was acquitted in 1795. He was made a Privy Councillor in 1814.-Early life:...
thus decided to create a, "commission a composition A Code of Gentoo Laws, Ordination of the Pundits". While the translations of certain digests definitely improved the judges' knowledge of Hindu laws, in the early stages the pandits were still needed to interpret and to clarify the meanings of the sources of law. The judges developed large mistrust for the pandits and many felt that these pandits were obstructing the administration of justice. Sir William Jones commented on his distrust of the pandits in a letter to Cornwallis stating, "It would be absurd and unjust to pass indiscriminate censure on so considerable a body of men; but my experience justifies me in declaring, that I could not with an easy conscience, concur on any decision, merely on the written opinion of the native lawyers, in any cause in which they could have the remotest interest in misleading the Court. This great mistrust led to a strong mission aimed at translating all of the texts and codifying the Hindu laws so that the pandits would no longer be needed in the court room. The problem with this was that Hindu law was not this simple. Lariviere, a scholar of Hindu law has stated that, "To claim that a single text, or even a series of texts, or eventual a series of decisions based on texts, would be uniformly applicable to all those who claimed to be Hindus was to misunderstand the nature of he dharmsastra and to misunderstand what it meant to be a Hindu". In 1864, the pandits were abolished from the legal process and the judges assumed total control over the administration of justice.
Judges
Judges in Anglo-Hindu law were for the vast majority of the time of English descent. This led to many complications since the sources in which Hindu law were derived from were written in Sanskrit, a very difficult language to master. As a result, in the beginning judges had to rely on court pandits, or Indian legal experts, who were to play an active role in the case. The court pandits were supposed to listen to the facts of the case and then cite relevant scripture and explain to the judge why the scripture supported one side or the other. Most judges, however, didn't trust these pandits and sought to codify the Hindu law.Judicial Precedent and English Common Law's influence on Hindu Law
Judicial precedent and English common law had a major impact on not only the British administration of Hindu law, but the future of Hindu lawHindu law
Hindu law in its current usage refers to the system of personal laws applied to Hindus, especially in India...
in India
India
India , officially the Republic of India , is a country in South Asia. It is the seventh-largest country by geographical area, the second-most populous country with over 1.2 billion people, and the most populous democracy in the world...
. While the British attempted to be respectful and administer the proper religious laws to the Hindus, it couldn't help but incorporate aspects such as judicial precedent, which is a fundamental part of English common law. Over the course of time, a body of case law grew as the British administers more and more cases that pertained to Hindu law. The judicial decisions made on prior cases began to have a substantial affect on how judges viewed cases brought to the court. If the judge found a prior case (or cases) that was similar to the one he was currently adjudicating, he would likely use justify his ruling citing the prior case (or cases). The use of judicial precedent had substantial effect on Hindu law. Since the language of sacred texts was so inaccessible to English judges, many of the early case rulings may have not been correct. Many failed to understand the true nature of Hindu law and ruled in ways that they personally thought was to be the best. This goes against the idea that Brahmans and pandits, who through the deep and dedicated study of the sacred texts, were the only ones who could decipher the meaning in the context of each particular case.