How has law helped in the

consolidation of British rule In India?

S. Moses Twinkle, St.
Stephen's college, BA
(Hons)History- 2nd year.
Scholarly position is that the Law has been described as the cutting edge of colonialism.
British law represented to the colonizers in India a substantial advance over the "savage"
customs of the colonized. Law was conceptualized, as Fitzpatrick points out, as "the gift we
gave them." It was central to the "civilizing mission" of imperialism, particularly British
imperialism of the nineteenth and early twentieth century. Understanding of the
relationship between law, power, and agency in colonial contexts is crucial for any student
of history. Beginning with the work of Bernard S. Cohn and continuing through two
generations of historians, the study of India's colonial period has produced a tremendous
body of scholarship, much of it emphasizing links between colonial knowledge, power, and
the transformation of Indian society1. Our agenda of this essay would be to explicate the
nature and character of law in the backdrop of its historical development and evolution of
British Law in India. The essay briefly enquires into 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 pragmatism 2. The contradicting or paradoxical
character of law which ultimately becomes the agent of consolidation of British empire is
analyzed and discussed here. And also in the light of the pre-colonial confluence of
indigenous laws, the distinctive character of the British law is positioned in that its implicit
consolidating character is well explained. The scholarly ideas on Racial inequality and the
subsequent violation of law are also elucidated. A section had been on The waxing eloquent
invocations of ambiguous terminology like Civilizing Mission and Paternalism with their
Camouflaged double meanings leading thereby to the consolidation and legitimization of
universal attributes of colonialism. Before wrapping-up we would look at the contributions

1
Bernard S. Cohn, colonialism and its forms of knowledge: The British in India( Princeton: Princeton university press,
1996) and Nicholas B. Dirks, castes of Mind: Colonialism and the Making of Modern India( Princeton: Princeton
university press, 2001).
2
Singha, A Despotism of Law: Crime and Justice in Early Colonial India, 1998
of individuals and institutions in the growth of the Modern law system in India in
establishing judicial institutions and the legal concepts like rule of law and equal protection
of law.

Historians of the colonial world have convincingly argued that many modem ideas and
institutions of law, education, medicine, science, criminal justice, and so forth were tested
first in the colonies and subsequently implemented in the metropoles3. Liberal
experimentation in the colonies was enabled by the absence of democracy and public
accountability and defined by the preferential and unequal treatment given to citizens over
subject. Here we would be studying about institution of law precisely. The idea that India
had long been enslaved by the tyranny of Oriental despotism made law a critical instrument
by which Britons simultaneously established their authority and differentiated colonial law
and order from the anarchy of previous regimes4. The rhetoric of law's liberating and
civilizing power, however, was contradicted by colonial legal practices and conventions
that sanctioned various forms of physical and economic violence. The narrative of
utilitarianism was such that India was in desperate need of revival and Modernization5.
The comprehensive work of scholars like Ranajit Guha, interprets law as the "state's
emissary," a technology of empire that expanded and entrenched the power of the colonial
state. Guha argues that British officials not only used law to create the colonial state but
they also used the language of law to legitimize their rule.

To have a better understanding, let us explicate and unfold our argument in the backdrop
of historical evolution and subsequent development of law in India. Despite the fact that
the concept of law became a part of colonial discourse and the subsequent developments
logically in the field of law in 1683 and 1687, it was in post glorious revolution era that
the developments in law became much more emphatically pronounced . A charter of 1726
restructured the Mayor’s Courts at Madras, Bombay and Calcutta. Merchant litigations
dominated the Mayor’s court and mainly issues of commercial laws were disputed and
discussed. 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. 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 Calcutta.
The disputes of legality concerning land revenue and land tenure dominated the courts.

3
Eric Stokes, The English utilitarians and India ( Oxford: Clarendon press, 1959) and Uday Singh Mehta, Liberalism
and empire: A study in Nineteenth-Century British Liberal Thought( Chicago: University of Chicago Press, 1999)
4
Nasser Hussain, The Jurisprudence of Emergency: Colonialism and the rule of law( Ann Arbor: University of
Michigan press , 2003); and Robert Travers, Ideology and empire in 18th century India: The British in Bengal, 1757-
1793( Cambridge: Cambridge university press, 2007)
5
Elizabeth Kolsky, Colonial Justice in British India: White violence and the Rule of Law( Cambridge: Cambridge
University Press, 2009).
Land was a complex issue which involved questions of ownership and state’s right to raise
tax out of it. Recurrent famines and parliament’s pressure made company to look for these
issues on an urgent basis. The task compelled company to look at native system of law and
justice.

Hastings revolutionary and inevitably unprecedented laws in 1772 was precisely because
of internal inconsistencies and due to the deep seated matured inefficiency of confluence
or conglomeration of Hindu and Muslim laws- the pre-colonial system of justice. The pre-
colonial system of legal and moral justice was an amalgamation of two religious and
cultural traditions. Despite all these haphazard's, 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. A report of Francis Buchanan on Mysore shows the long term
existential presence of caste councils, religious gurus and hereditary chiefs that adjudicated
legal disputes. Speaking in the sense of regional particularism than the all encompassing
colonial generalization, Bengal followed Islamic laws and procedures based on distinction
of criminal and civil jurisdiction. The extensive Works of scholars and historians on
Maharashtra shows that the working of Panchayats consisting of village notables who
administered justice and ‘state was not allowed to interfere with Panchayat’s customary
right to deliver justice. The British policies of land settlement and Panchyat’s delayed
justice machinery led to its decline. The reach of these justice delivering centers were
limited socially and geographically. These courts turned inefficient by the turn of
nineteenth century. Numerous disputes over Zamindari estate and property rights were
pending in these courts. Because of the prevailing confusions and hectic disturbances
regionally, Judicial peace and tranquility began to collapse into void. The unprecedented
solution came to rescue under Hastings in year 1772.

One of the two fundamental salient features of this new civil law is that it inclusive in every
likelihood. Practitioners and propagators of any faith are part of this law and that no one
faith's voice is suppressed. The second most important and worth considering point is that
this law led to the establishment of formal system of courts. The supreme court as the
ultimate appellate court for trying cases involving state and European subjects had been
established at Calcutta in 1772. Deewany and a faujdariadawlut were the two important
courts of the district that had been established under the framework of this law. The civil
courts in India were to be presided over by European District Collectors with the assistance
of the maulavis and pundits. 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. 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. Nizamatadawlut was brought back to
Calcutta 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. Cornwallis introduced Permanent Settlement with the hope that the rule
of law and private-property rights would liberate individual enterprise from the shackles of
custom and tradition, and would bring in modernization to the economy and society . 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. British colonialism is responsible for
these well structured, timely and efficient reforms of this period.

So, Colonialism in this case and in some senses typically involved the large-scale transfer of
laws and legal institutions from one society to another, each of which had its own distinct
socio-cultural organization and legal culture. The result was a dual legal system: one for the
colonized peoples and one for the colonizers. Dual legal systems were widespread not only
in India in colonized parts of Africa, Asia, Latin America, and the Pacific. Postcolonial
countries are now grappling with this legacy as they debate how to fashion a unified legal
system out of this duality and how to resurrect and implement the remnants of indigenous,
pre-colonial law. The language of transfer and duality, however, ignores the central feature
of colonialism: It was a process in which one society endeavored to rule and to transform
another. The role law played in the colonizing process is an instance of its capacity to reshape
culture and consciousness. At the same time, law contributed to the construction of a new
consciousness, a new set of under- standings of persons and relationships. For example,
Anglo-American law incorporates conceptions of fee simple landholding, of monogamous
marriage and divorce, of contractual relations, and of individual rights linked to
conceptions of the autonomous choice-making individual that are embedded in post-
Enlightenment Anglo-American culture.
During the era of colonialism, the judicial reforms were relatively 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 Plantation. 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
arbitrariness. Many more reforms inevitably followed: The Code of Civil Procedure (1859);
Indian Penal Code (1860); Criminal Procedure Code (1862).

There was a presence of difference between the pre-colonial Mughal justice and the justice
system of the Brits. Codification, commentaries on codes and ancient law books and judicial
interpretations made ordinary subject perplexed and even more confused. 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 inferiority’.
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 later in the essay.

The character of this law system could be well explicated. A corollary of the argument that
Britain gave India political unity and democracy is that it established the "rule of law" in
the country. This was in many ways central to the British self conception of imperial
purpose. Bringing law to the natives was arguably one of the most important constituent
element of this so called civilizing mission. Kipling waxed eloquent on the noble duty to
bring law to those without it. The British both laid down the claim and derived legitimacy
in their own eyes and in those of the world from doing so. But the rule of law in India must
be understood from its inception as integrally linked to a principle of racial inequality and
to a practice of legal exceptionalism6. Placing Europeans and Indians on an equal footing
before the law was seen by most British officials as the subversion of justice rather than the
fulfillment of it and therefore the principle of equality was deemed to be unsuited to India.
Most scholars of India and the British empire are familiar with the outcry unleashed by the

6
Elizabeth Kolsky, A Note on Study of Indian Legal History: Law and History Review, Vol. 23, No.3 ( Fall, 2005), pp.
703-706.
Ilbert Bill, legislation that was intended to level the playing field by subjecting white
expatriates in India to the same judges and magistrates who exercised authority over
Indians. So intense was the opposition both within the European community in India and
among the public in Britain that the government was forced to make a number of
concessions. These changes effectively neutered the bill, notably by guaranteeing that
Europeans brought before such would be tried by juries in which the majority of the
members were white. The fate of the Ilbert Bill provides glaring proof of the discrepancy
that lay between the idealized rule of law heralded by apologists of empire and the actual
application7. This is the terrible paradoxical character of the so called rule 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 chaos. 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 home. Radhika Singha also opines that
codification of law was a product of moral, legal and political problems 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”.

7
(Review) Douglas M. Peers, Colonial Justice in British India: White violence and the Rule of Law by Elizabeth
Kolsky: The American Historical Review, Vol. 116, No. 2 ( April 2011), pp. 439-440.
With respect to criminalization of the native subjects it would be important to answer this
in two panels. The nature and character of law can be reasonably deduced. The kind of
argumentation in the subsequent explication of analytic factors is inductive though it is
deduced by the rich work of the historians and scholars in these regions. Understanding
this from specific salience, Scholars like Radhika Singha’s study of Thuggees of Central
India exposition the systems and 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’ 8. 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 transient and careful campaigns
with ‘due use of force’ upon them only strengthened the ‘anti-piracy discourse of the state’.

So we have analyzed the nature and character of consolidating character of law in British
India. By 1890s, with the rampant pronouncements, 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. In these ways, against all seeming odds and evens and improbable
plausibility's in all these dimensions, Law played a quintessential role in consolidation of
British rule in India and thereby their existence, at least till they passed out of the same
existence in 1947.

BIBLIOGRAPHY

1) Bandyopadyay, Shekhar. From Plassey to Partition and After: A History of Modern India. New Delhi:
Orient Blackswan, 2009.

2) Kolsky, Elizabeth. A Note on the Study of Indian Legal History. Law and History review. 2005: 703-706.

8
Singha, Despotism of Law, 1998.
2) Kolsky, Elizabeth. "Codification and the Rule of Colonial Difference: Criminal Procedure in British
India." Law and History Review, 2005: 631-683.

4) Kolsky, Elizabeth. Colonial Justice in British India White Violence And The Rule of Law. New Delhi:
Cambridge University Press, 2010.

5) Sally Engle Merry. Law and colonialism, Law & Society Review, 1991: 889-922.