Anglo-Hindu law

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The first phase of Anglo Hindu Law (1772–1864) is characterized by three main features: 1) the collection and translation of important Dharmaśāstra texts by British administrator-scholars (e.g., Jones, Henry Thomas Colebrooke, Sutherland, and Borrodaile) in order to apply the rules of such texts to Hindus, 2) the employment of Court Pandits in British courts to aid British magistrates 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 growing suspicions 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 combined with the new legislative foundation diminished the relevance and interest in Dharmaśāstra as the source of law also diminished. 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 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.

Sources[edit]

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.[1] Anglo-Hindu law relied on sources that had been used previously, throughout Classical Hindu Law, 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.[citation needed] 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.[not revealed in sources below][citation needed]

Sruti and Smriti[edit]

The Sruti 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.[citation needed] 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[citation needed] 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.[2]

Duty of Brahmans[edit]

The primary duty of the Brahman 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.[3] 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.[from public?][citation needed][4]

Code of Manu[edit]

The Code of Manu has been treated by Hindu sages and commentators as being of paramount authority.[citation needed] This does not however prevent them from treating it as obsolete whenever situation requires.[citation needed] The personality of its author is mythical. The sages implore Manu to inform them of the sacred laws. Manu 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.[5]

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.[6]

Narada Smriti[edit]

This work is ascribed to the Divine sage Narada 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.[7]

Commentators[edit]

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.[8]

Mitakshara[edit]

By far the most significant of all the commentaries is that by Vijyanesvara, known as the Mitakshara.[citation needed] Its authority is applied most notably in the city and province of Benares and it heads the works that settle the law in South[citation needed] and West India as well. The supplementary works in Southern India [which part of Southern India?][citation needed], 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.[9]

The Madras High Court and the Judicial Committee distinguished between the Benares and the Dravida schools of law, and recognized a distinction between an Andhra and a Dravida School as well.[10]

Chandrika and Mimamsa[edit]

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.[11] To read more on the idea of adoption as it related to Hindu Law see: Mayne, 1906, pp. 42.

Digests[edit]

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"[12] because Halhed translated it from Persian, not from Sanskrit. This was not the case for Colebrooke's Digest.[13]

Custom[edit]

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 Council maintained that "clear proof of usage will outweigh the written text of the law". Questions of usage arose in four different ways in India:

  1. races to whom Hindu Law had never been applied
  2. those who profess to follow the Hindu law generally, but who do not admit its theological developments
  3. races who profess submission to it as a whole and
  4. persons formerly bound by the Hindu Law but to whom it has become inapplicable.

When questions as to usage arose, the following were observed

  1. any Hindu residing in a particular province of India was prima facie held to be subject to the particular doctrine of Hindu law recognized in the province, with the exception of migration
  2. when such an original variance of law was once established, it cannot be presumed that it continues[14]

History and Development[edit]

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.

Phase 1: Rise of Court Pandits in India[edit]

On

Early British Control[edit]

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.[citation needed] 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 tenure. 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.[15]

Translation of sources[edit]

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 precedent-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.[16] 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.[17]

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.[18] 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.[19]

Warren Hastings' model of Hindu law[edit]

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.[citation needed] 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".[4]

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.[20]

Warren Hastings' Plan of 1772[edit]

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[edit]

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.[21] 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.[22] The Daya Bhaga and the Mitakshara differ in the most vital points[23] 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.[24]

Colebrooke's conception was erroneous. He thought that the commentaries on Hindu legal texts were the works of "lawyers, juriscouncils and lawgivers"[25] 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.[26]

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.[citation needed] 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".[27]

Jones' Digest[edit]

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.[28]

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.[29]

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.[30]

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.[31]

Strange's Hindu Law Manual[edit]

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.[32] 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:

  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[edit]

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.[33]

Marriage Case[edit]

Binda v. Kaunsilia – the right of conjugal cohabitation[34]

  • Justice Syed Mahmood 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[edit]

Tarachand v. Reeb Ram[35]

  • 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
  • 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[36] – 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[edit]

Collector of Madura v. Muthu Ramalinga Sethupathy (Ramanad case)[37]

  • 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

Abraham v Abraham[38]

  • 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
  • However, parcenership had to governend by the Hindu law

Venkata v. Subadra – who may give in adoption?[39]

  • 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
  • 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

Phase 2[edit]

1864-1947

Marriage[edit]

Inheritance[edit]

Adoption[edit]

Administration and Practice[edit]

British Administration of Hindu Personal Laws[edit]

Personal laws can be defined as a, "Part of law that deals with matters pertaining to a person and his or her family".[40] 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."[41]

Inheritance[edit]

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[edit]
  • 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."[42]

Caste[edit]

Laws regarding Hindu caste were administered in situations where caste had an effect on the way particular Hindu laws were to be intrepreted.

Marriage[edit]

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[edit]
  • 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.

Religion[edit]

Important Legislative Acts on Religion[edit]
  • Religious Endowments Act of 1863

Adoption[edit]

Adoption 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.[43] 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[edit]

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[edit]

  • 1726 - Charter by King George I
    • 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 Hastings
      • 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).
  • 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 Hinduism 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.[44]
  • 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."[45]
  • 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 India, which was inaugurated in 1950.

The High Courts of British India[edit]

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.[46]

Privy Council[edit]

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."[47]

Role of Pandits[edit]

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 Hastings thus decided to create a, "commission a composition A Code of Gentoo Laws, Ordination of the Pundits".[48] 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.[citation needed] 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.[49] 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 the dharmsastra and to misunderstand what it meant to be a Hindu".[50] In 1864, the pandits were abolished from the legal process and the judges assumed total control over the administration of justice.[citation needed]

Judges[edit]

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[edit]

Judicial precedent and English common law had a major impact on not only the British administration of Hindu law, but the future of Hindu law 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 effect 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.

See also[edit]

Notes[edit]

  1. ^ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 13-14
  2. ^ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 14-15
  3. ^ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 15-16
  4. ^ a b Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 3. pp. 66
  5. ^ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 20-22
  6. ^ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 22-23
  7. ^ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 23-24
  8. ^ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 26-27
  9. ^ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 27-28
  10. ^ Mayne, John Dawson. A Treatise on Hindu Law and Usage
  11. ^ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 30-32
  12. ^ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 33
  13. ^ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 33-34
  14. ^ Aiyar, Nandivada R. Narasimha. The Principles of Hindu Law. Introduction. pp. I-Iviii
  15. ^ Cohn, Bernard. Colonialism and its Forms of Knowledge. Introduction. pp. 5-6
  16. ^ Cohn, Bernard. Colonialism and its Forms of Knowledge. Foreword. pp. xv
  17. ^ Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 2. pp. 20-21
  18. ^ Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 2. pp 25
  19. ^ Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 2. pp. 26
  20. ^ Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 3. pp. 67
  21. ^ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 38
  22. ^ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 38-39
  23. ^ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 40
  24. ^ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2. pp. 40-41
  25. ^ Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 3. pp. 73
  26. ^ Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 3. pp. 74
  27. ^ Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 3. pp. 74-75
  28. ^ Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 3. pp. 68
  29. ^ Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 3. pp. 69
  30. ^ Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 3. pp. 69-71
  31. ^ Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 3. pp. 70
  32. ^ Strange, Thomas Andrew. A Manual of Hindu Law on the Basis of Sir Thomas Strange
  33. ^ Cohn, Bernard. Colonialism and its Forms of Knowledge. Ch 3. pp. 71
  34. ^ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 4. pp. 119
  35. ^ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 3. pp. 57
  36. ^ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 17. pp. 758-759
  37. ^ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 2,10. pp. 30,154
  38. ^ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 3. pp. 66-69
  39. ^ Mayne, John Dawson. A Treatise on Hindu Law and Usage. Ch 10. pp. 175
  40. ^ "personal law definition". BusinessDictionary.com. Retrieved 2008-12-14. 
  41. ^ http://www.archive.org/stream/hindulawbeingtre01coweuoft
  42. ^ Davis, "Matrilineal Adoption, Inheritance and Rites for the Dead among Hindus in Medieval Korala"
  43. ^ http://books.google.com/books?id=gH4_AAAAIAAJ&pg=PA201&lpg=PA201&dq=%22hindu+law%22+and+%22british+india%22&source=web&ots=LV6N2ePXzo&sig=NMaFVlFzRTQsdzka719UkoS-aBQ&hl=en&sa=X&oi=book_result&resnum=5&ct=result#PPA202,M1
  44. ^ [2]
  45. ^ High Courts of India
  46. ^ http://supremecourtofindia.nic.in/HBPAPSCOI/1.html
  47. ^ Lariviere, Justices and Panditas: Some Ironies in the Hindu Legal Past
  48. ^ Lariviere, Justices and Panditas: Some Ironies in the Hindu Legal Past, page 6
  49. ^ Lariviere, Justices and Panditas: Some Ironies in the Hindu Legal Past, page 7
  50. ^ N Subrahmanian. Hinduism at the crossroads of history. Kanishka Publishing House, 1993
  51. ^ Marc Galanter, Law and Society in Modern India (Delhi: Oxford University Press, 1989)
  52. ^ Indian Political Thought, University of California Press, p.164