LAW: INSTRUMENT OF

COLONIAL CONSOLIDATION

UNNAYAN CHANDRA
B.A. HONOURS

Major – History

Minor – Economics

Batch of 2020

Stephen’s College

Referencing – Chicago Manual

Citation – In – Text

Footnoting – Chicago MLT

Bibliography – Chicago Manual

 LAW: AN INSTRUMENT OF COLINIAL CONSOLIDATION
The foundation of our empire in India rests on principle of justice, and
England retains its supremacy in India mainly by justice. Without Justice
we could not hold India for a moment.1

-Sir Robert Fulton

OBJECTIVES
The primary objective of this essay is to trace the assistance that law, the most
trusted accomplice of the British, rendered in the colonial consolidation of India. It
briefly enquires the broad colonial ideological framework and its applicability to
law and justice system that constantly shaped and redefined the foundational
principles of a foreign power without ignoring the domestic readjustments based
on situational pragmatism2. This work primarily focuses on the social dimensions of
legal development. The difficulties faced by the British due to the inconsistencies
of pre-colonial system of Law and Justice are also studied. A brief survey of Mughal
and eighteenth century legal system is done to facilitate our understanding of the
multiple aims and means of introducing British legal system. The essay focuses on
the process of legislation in the early company rule (1600-1772). It studies the first
major reform by looking at Hastings’ Project (1772-81) and then continues to study
Council Era of legislation (1781-1861)3. It then studies the dilemma faced by the
British in criminalizing the subject by briefly studying three communities: Thugs,
Coolies and Brahmins. Underlying challenges and difficulties that the colonizers
found in legally banning social practices such as Sati and Female Infanticide are

1
J.T (Sunderland 1929)
2
(Singha, A Despotism of Law: Crime and Jistice in Early Colonial India 1998)
3
This division is as suggested by Tirthankar Roy and Anand V. Swamy (Tirthankar Roy 2016)
briefly summarized4. I believe that an equal emphasis on the legislations of the
British parliament points to the multiple levels of consolidation through legal
means and confirms that parental ideological frameworks constantly guided the
law making process in India. The essay also looks at process of codification of law –
its potentiality and challenges. How law, under the hidden and ambiguous concepts
such as ‘Civilizing Mission’ and ‘Paternalism’5, helped in consolidating and
legitimizing the fundamental and universal attributes of colonialism such racial
differences, normalization of violence and ‘otherification’ of the colonized, have
been studied. It finally looks at the contributions of individuals and institutions in
growth of a ‘modern legal system’ in India: establishment of judicial institutions;
Roman procedures; modern concepts such as ‘rule of law’, ‘equal protection of law’
and ‘due process’ and; modern administrative machinery such as Civil Services,
Police and Court.

EARLY ERA (1600-1772)

The question of law became a pressing reality from 1660s when the East India
Company started possessing territories. The Royalist-Leveller contest in England
made it necessary for the government to clarify its position on governance and
jurisdiction of Madras – where the company owned small stretch of land. The
acquisition of Bombay in the 1660s necessitated a policy on tenancy. A charter
granted by Charles II authorized the company to appoint governors who had the
power to adjudicate civil and criminal suits. Progress was rapid thereafter when a
charter in 1667 granted the company authority to issue currency; in 1683 admiralty
courts were established. Judicial matters began surfacing in the King’s name. These
measures led to the establishment of Mayor’s courts in Madras, Bombay followed.

After a brief disturbance due to Glorious Revolution (1688), attention again turned
to India. A charter of 1726 restructured the Mayor’s Courts at Madras, Bombay and
Calcutta (1690). The brief occupation of Madras by the French did not alter the
judicial system significantly. The judges were not clear about the legislation that
was to be followed. Merchant litigations dominated the Mayor’s court and mainly

4
(Subramanian 2013)
5
(Bandyopadyay 2009)
issues of commercial laws were disputed and discussed.6 With territorial expansion
of the British in India through the battles in 1757 and 1764, the liabilities and fears
of the company increased. It had very little institutional and informative resources
at its command.7 An attempt was made by the parliament through Lord North’s
Regulating Act of 1772 which started the process of centralization and
subordination in India. It also allowed the establishment of a Supreme Court at
Culcutta. Now legal disputes of land revenue and land tenure dominated the
courts. Land was a complex issue which involved questions of ownership and
state’s right to raise tax out of it.8 Recurrent famines and parliament’s pressure
made company to look for these issues on an urgent basis. The task compelled
company to look at indigenous system of law and justice.

PRE-COLONIAL JUSTICE SYSTEM

The pre-colonial system of justice was based on Indic Islamic or Hindiya laws derive
from two code-books namely al-Hedaya and Fatwa-i-Alamgiri9. The British courts
started using precedents and proceedings with some alteration. A snapshot of law
of land in the pre-colonial era from different regions will help us understand its
inherent flaws requiring the British to initiate reforms. Works done on Maharastra
shows the working of Panchyats consisting of village notables who administered
justice and ‘state was not allowed to interfere with Panchyat’s customary right to
deliver justice10. The British policies of land settlement and Panchyat’s delayed
justice machinery led to its decline. A report (1807) of Francis Buchanan on Mysore
shows the existence of caste councils, religious gurus and hereditary chiefs that
adjudicated legal disputes. Bengal followed Islamic laws and procedures based on
distinction of criminal and civil jurisdiction. Property and other civil matters were

6
With the growth of trade and Town, merchants and even ordinary men looked up to these company courts for
dispute resolution .
7
Tirthankar Roy and Anand V. Swamy argues that ‘little political capital, tiny army and pervasive fear of being
attacked’ were realized both by the parliament and the company.
8
Traditionally, land ownership in India saw graded rights over the same piece of land where those who tilled and
those who owned it produce were completely different set of people.
9
Fatwa-i-Alamgiri was a recent text written during the reign of Emperor Aurangzeb.
10
The summary of such legal cultures in pre-colonial India is given in R. Birla’s Stages of Capitalism; Law, Culture
and Market Governance in Late Colonial India and L. Benton’s Law and Colonial Cultures: Legal Regimes in World
History. Both these works have been summarized in Roy and Swamy.
settled in the court of Deewan or ‘adawlut deewany’ and criminal matters were
settled in ‘nizamat adawlut’ administered by the office of the Nizam. The reach of
these courts were limited socially and geographically. These courts turned
inefficient by the turn of nineteenth century. An abortive attempt was made by the
government to bring panchyats and caste councils within the state corpus. Local
headmen were more knowledgeable and informed that judges in towns. Numerous
disputes over Zamindari estate and property rights were pending in these courts.
All these issues complicated and created a void which compelled Warren Hastings
to begin his first project, known as Hastings Project.

Hastings Project (1772) allowed the establishment of Supreme Court of Culcutta as

the ultimate appellate court for trying cases involving state and European subjects.
Hastings’s reforms were revolutionary and unprecedented in two senses. First, the
new civil law encompassed all inhabitants irrespective of their faith. Second, it led
to a formal system of courts. Each district was to have two courts a deewany and a
faujdari adawlut. The Muslim nomenclature continued in the civil suits but the lex
loci were essentially English. The civil courts in India were to be presided over by
European District Collectors with the assistance of the maulavis and pundits. The
criminal court was to be presided by kazi and muftis and Sadar Nizamat Adawlut
was transferred from Murshidabad to Culcutta. In the provinces, revenue officers
were charged with management of district courts. This led to a persistent overlap
between the judiciary and executive in the interiors and lower levels of
administration. The code of 1781 prescribed specific procedural law with certain
universal applicability. The code was a response to the changing administration of
revenue collection and Whig principle of separation of power. Orientalist
ideological domination led to an emphasis on indigenous roots of substantive law
mostly relying on ‘religious laws’. The drive to define, codify and preserve
indigenous laws was led by scholars such as William Jones, Henry Thomas
Colebrooke, Thomas Strange and Francis and W.H. Macnaghten. While civil and
criminal disputes were settled by referring back to indigenous religious laws,
commercial disputes in the port towns followed mostly the English precedents. The
perpetual problem of uncertainty, conflicts, arbitration and a very wide scope of
interpretation while defining religious laws continued to exist, but the Hastings
Project ‘tended to centralize judicial authority, and reduce administration to a
system’11. The Cornwallis system of 1793 finally separated the executive and
judicial functions of collector, attempted to define property rights. It also
transformed criminal system by abolishing faujdari courts and replaced them by
circuit courts to be headed by European judges. Nizamat adawlut was brought back
to Culcutta and under direct control of Governor-General-in-Council. The
Cornwallis system was extended to the province of Banaras and Ceded and
Conquered Provinces in 1803 and 1805 respectively. A different system was
adopted for Bombay and Madras where under Thomas Munro and Elphinstone
greater Indianisation of the system saw the union of judicial, revenue and
magisterial powers were vested in collector’s office.

COUNCIL ERA (1781-1861)

The judicial reforms in the Council Era were inefficient and did not cater to the
economic and social needs of the land. Contradictory interpretations and confusion
surfaced with the coming of new businesses such as Plantation12. Many regulations
were issued that delayed cases due to limited informational infrastructure available
to the judges. Abolition of local courts and council led to the flooding of suits
related to inheritance and property which were to be decided by referring to
religious and customary laws. These established categories of law did not cater to
new economic pragmatism of the times. No law of contract, evidence, succession,
territory or administration of deceased states led to a constant consternation on
the part of the British. In response to these problems, the Charter act of 1833
removed the legislative power of the Supreme Court and made the Governor
General in Council as the supreme legislative authority. The establishment of Law
Commission to enquire into the desirability of new substantive laws and suggest
areas of reform was aimed at eliminating the elements of uncertainty and
arbitrariness13. Many more reforms followed: The Code of Civil Procedure (1859);

11
(Tirthankar Roy 2016)

13
T.B. Macaulay who is known for his greater emphasis on westernization was the chairman of the commission.
Indian Penal Code (1860); Criminal Procedure Code (1862). We shall discuss the
issue of codification separately.

The Justice system under British by the mid nineteenth century looked significantly
different from the Mughals. Codification, commentaries on codes and ancient law
books and judicial interpretations made ordinary subject perplexed and even more
confused. Common man was now removed both topographically as well as
psychologically from access of legal services of the state14. A new social class of
lawyers emerged due to the professionalism that the new system demanded. The
concept of ‘equality of law’ was not inherently flawed. Discretion and arbitrariness
continued based on the argument of ‘cultural particualarism’ and ‘civilizational
inferiority15’. Differential treatment to the ‘natural subject of her Majesty’ was
justified on the lines of racial differences. Criminalization of subject was not based
on individual liability. We shall discuss these complimentary problems that law
brought forth.

Radhika Singha argues that law making process was a cultural enterprise which
reflected a constant struggle of colonial power to draw upon existing norms of rank,
gender and status. The colonial power faced a dilemma in balancing the ‘norms of
Justice’ and ‘realities of situation’: law making process was a constant bargaining
between the two. She points out that the British definition of criminal liability was
conceptualized on the claims of ‘indivisible sovereignty’ and ‘its claim over an equal
abstract and universal subject16’. Such claims made legitimized violence as the ‘sole
prerogative of the state’ in wider ‘public interest’. She also argues that Indian legal
traditions were read in manners that confirmed to the British’s policy of
domination and subordination. In her opinion, law provided ‘nodes of
communication’ with the subject. She also argues that legal changes, unlike that in
the economic and administrative sphere, were not a sustainable dichotomy
between Raj’s Orientalist-Utilitarian debates. She argues that newly conquered

14
(Bandyopadyay 2009)
15
(Bandyopadyay 2009)
16
(Singha, Despotism of Law 1998)
territories served as pilot experimentation grounds for legal experimentation:
Madras and Bombay remained Raj’s legal laboratory.

CRIMINALIZATION OF THE SUBJECT

That law making process led colonial power to draw upon existing norms of status
and gender has been reconfirmed by Lakshmi Subramanian17. She studied the
differential legal treatment given to Brahmins of Banaras to argue that social
pressures were not overlooked by judges and privilege of caste was an important
consideration while pronouncing judgment in company’s early era. A significant
work by Lata Mani brings to our notice the socio-legal dimensions of ritualized
suicide or Sati. Initially, the company tried to avoid interfering or taking a definite
stand on the subject. She points out that events that led to the abolition of Sati did
not established the ‘primacy of female subject’ and instead deployed female body
as a’ site for deliberating the correct version of tradition’.

Radhika Singha’s study of Thuggees of Central India explores ways in which idea of
criminal communities was developed to justify state coercion. Given the challenges
that state faced in cowing down these ‘notorious’ communities, the state decided
to fix collective responsibility penalizing entire community for a crime. This was also
due to the inability of the state to procure evidences that can lead to individual
prosecution. The criminalization of a community severely jeopardized state’s claim
of ‘rule of law’ and ‘theory of nature justice’18. A study by Stuart Gordon shows how
the community was stereotyped due to the individual contribution of William
Sleeman. This study has merit when it argues that Thugs were criminalized due to
economic and political pragmatism than the legal fiction of maintaining ‘law and
order’. Thus the various acts passed between 1836 and 1843 involved stringent
measures and justified the use of approvers’ evidence. Macaulay’s act of 1837 was
a brilliant legislation which finally made the point that dual standard of evidence
would not be introduced. A similar justification for military action against ‘Cooley
pirates of the northward’ rested on the narrative of ‘predation seen as enemy of
mankind’. The legal fiction of accommodating their customary rights proved

17
(Subramanian 2013)
18
This point has been supported by Elizabeth Kolsky and Laxmi Subramanian.
transient and careful campaigns with ‘due use of force’ upon them only
strengthened the ‘anti-piracy discourse of the state’.

The change in the status of Devadasi in the later decades of nineteenth century
suggested a criminalization of the devadasi subject. The conflict between
situational realities and customary tradition can be classically deciphered in the
process of the so called criminalization of the subject, where Parker argues that the
so called ‘criminal intent’ of the state was hidden in the name of judicial
intervention or reformism19. A work by Jordon points out how a sacred servant was
transformed into a ‘profane prostitute’ because of the tensions between a tradition
of moderate civil law and aggressively ‘modern criminal justice system’.

RACIAL IDEOLOGY AND VIOLENCE OF LAW

A path breaking study of Elizabeth Kolsky is seen as a major intervention in
understanding the use of law as an instrument of state for inflicting discriminatory
violence and justifying racial ideology by segregating the governors from the
governed; the white from the non-white; official violence from non-official
violence. The British used law both to claim a guarantor of justice and liberty as
well to legitimize its rule by constructing superfluous ideas like ‘oriental despotism’
and ‘anarchy and chaos20. Their ideological masters such as John Locke, James
Stephens and Bentham legitimized violence of state and differential treatment to
the ordinary subject. Eric stokes argues that law reforms in India was defined by
the racial Benthamites who believed redeeming people from darkness to
civilization. Codification of law was thus a ‘Utilitarian agency’, argues Stokes.
Macaulay saw rule of law as the greatest gift to the people of India by his good but
not free government. The absence of codified law in England led renowned
advocate of codification, Jeremy Bentham and his followers like James mill,
Macaulay and James Fitzjames Stephen to openly hope that codification of law in
colonies would have an impact on legal changes at home21. Radhika Singha also
opines that codification of law was a product of moral, legal and political problems

19
(Parker 1998)
20
(Kolsky, Colonial Justice in British India White Violence And The Rule of Law 2010)
21
(Kolsky, Codification and the Rule of Colonial Difference: Criminal Procedure in British India 2005)
posed by the unruly third face of colonialism. The work of Elizabeth Kolsky becomes
very significant in this context when she argues that the non-official quotidian
violence was common and prevalent and law was its most trusted accomplice. She
argues that the non official Briton got almost immunity due to the dual system of
Crown and company courts. Elizabeth also points out that the ‘two logics’ of
biological and cultural differences naturalized ‘imperial inequality’ and the crimes
of the colonizers were sometimes condemned but never that of colonialism which
sustained law in assisting ‘institutionalization’ and ‘normalization’ of racial
differences and violence. She concludes by arguing: “Colonial law did not exactly
produce white racial violence; it did not effectively prohibit it either”.

CONCLUSION
The legal framework that the British adopted was modeled on a set of religious
scriptures. Crossovers of these codes and availability of new English statues both
from parliament for the company and from Governor-General-in-Council for British
subjects provided new scope of institutionalization, but such attempts were very
limited and convergence was narrow initially. British in the early era ruled through
company was not much concerned about bringing any significant alteration. It was
mostly guided by commercial, mercantilist and corporate interests. With territorial
expansion, parliament started making occasional interventions but legal
framework was Mughal in spirit. The British were reluctant in disturbing any social
norms or practices to avoid any conflict as we have noted in the case of practice of
Sati and devadasi. By 1890s reforms had gained a following due to problems of
revenue collection, pressure from a slowly growing micro – educated class and
some major events like the revolt establishment of various societies. Still, needs of
the empire and pressures of ‘realities’ only were major consideration while bringing
any change in legal system. New administrative reforms such as those in Police,
Army and Civil Service were carried out through legal sanctions which helped state
establish its deepest penetration through symbols of authority. A discussion on the
development of these institutions is beyond the scope of this essay. To conclude
law helped British consolidating their power in India in three spheres: economics,
politics and administration.
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