RACIAL DISCRIMINATION IN THE JUDICIAL ADMISTRATION

ORIGIN
The advent of Muslim rule in this country created two different system of laws
in place of one depending for their application upon the personal status of the
parties i.e., Hindu law for Hindus and Muslim law for Muslims subject to a
theoretical exception in matters of crimes where the Muslim law applied to all.
When the Britishers entered this country they also brought their own law.
In the beginning this was a sort of immunity from general law of this land but in
subsequent years it developed as a claim of superiority not only of being
governed by their own laws but also of being amenable to the jurisdiction only
of different courts both in civil as well as in criminal matters.
DISTINCTION IN CIVIL JUSTICE
From the very begaining the position was that while, all other natives within the
companys territory were subject to the jurisdiction of the courts established by
the company, the British born subjects were amenable only to the jurisdiction of
the crowns court. In 1787, for the first time in Bengal it was provided that if a
British subject filed a suit in a companys court , which had the jurisdiction with
respect to the other party but did not have the jurisdiction over a British subject.
In 1793, Lord Cornwills prohibited the British subjects from residing beyond
ten miles of Calcutta.
The charter act of 1813 provided that the British subjects residing, trading or
holding immovable property beyond ten miles from the presidency limit could
be sued in the companys civil court. Lord Hastings in his reforms of
1814,however provided that cases in which British subject, European or any
American was a party, could not be heard in the courts of Munsifs and the Sadar
Ameens.
To achieve the object of codification and for creating necessary apparatus, the
Charter Act of 1833 was passed. By an act of 1839, the Munsifs were also given
jurisdiction against all persons but only in matters connected with arrears or
exactions of rent.

DISTINCTION IN CRIMINAL JUSTICE

It must be noted that the special privileges or judicial favours which the English
people enjoyed in the field of civil justice were abolished after 1843 but the
favours in the field of criminal justice continued for a longer time after that. By
regulating act 1773 the British subjects residing in the provinces of Bengal,
Bihar and Orissa were under the jurisdiction of the Supreme Court so that no
lower court could ever try them.
In 1813, the charter act instituted a licensing system for the Britishers who
desired to come to India. Due to this the doors of India were opened for them to
settle here and exploit. The English misbehaved and racial distinction provided
them a quite a nice opportunity. Assault, forcible entry and other injuries
inflicted by the English on the Indians went unedresed.
This was the position up to 1833. Thereafter taking into consideration section 46
of the charter of 1833.the passing of the Black Act in 1836 accelerated the
situation and Macaulay was not of the opinion of exempting a mere handful of
the settlers without having regard to the interest of Indian. The first Law
commission was of the opinion of subjecting the English to the jurisdiction of
some courts for the protection of the English themselves. This showed their
pride of race.
To remove this distinction Law member of the government of India Mr. Brthune
drafted a bill. This and there other bill were proposed to end this glaring
inequality but against these bills. It was only in 1949 after independence that by
passing of the criminal law (Removal of Racial Discrimination) Act that the
remnates of the racial distinction in the field of criminal justice were abolished.

DEVELOPMENT OF CIVIL LAW

INTRODUCTION
The British administration concentrated on the development of a system of
courts. From 1661 to 1883, they made and unmade various schemes of courts to
achieve viable system. In India came to have a number of codes on fundamental
and basic areas of human relationship. Law has been transformed from
personal law into territorial law

Law in presidency towns act of 1781

Before 1781, the SC had sought to apply English law to all in all matters except
that in certain matters the court applied Hindu law and Muslim law to the
Hindus & Muslims respectively.

LAW CLASSIFIED
After 1781 but before 1834 law administrate by SC in 3 presidency towns was
classified under the following heads:
1. Common law of England in 1726
2. Statute law of England in 1726
3. Statute law by the British parliament after 1726
4. Ecclesiastical and Admiralty courts in England
5. Regulations made by Govenor General- in- council & the governors in council
6. Hindu law- Usages:- inheritance &succession of lands , goods & rents ,
contracts & dealing between party & parties , when both the parties or
defendant were Hindu.
7. Mohammedan law Usages:- inheritance & succession to lands , goods &
rents , contracts & dealing between party & party in cases where both the
parties or the defendant were Muslims
INTRODUCTION OF ENGLISH LAW

The English law maintains a fundamental distinction between the legal position
of colonies acquired by settlement or by conquest or cession

COLONIES
(For the purpose of administration)
Nature Settled Colony

Ceded/Conquered Territory

A settled colony is a settlement made

by colonies i.e. peopling a country
which is uninhabited or has only savage
people

Ceded teritory is a territory made by

peopeling a territory which is civilized.
They have their own govt or system of
law.

Lex loci : There is no LEX LOCI, the Lex loci : Initialy ceded teritory had
subject of the crown carry with them LEX LOCI of their own Crown altered
their own laws & hence English law to change with English law
was applicable Settled Colony

Power of legislate : The subjects of the

crown carry along with them their
constitutional right. Power of legislate
was in the hands of British Parliament.
Crown
could
not
legislate
independently.
It
could
grant
constitution subject to its over riding
powers.

Power of legislate : Ceded colony

belonged to the crown in its own right.
Crown can legislate but was subjected
to over riding power of the parliament.

DEVELOPMENT OF CRIMINAL LAW

The traditional Muslim criminal law broadly classified crimes under three heads
: (i) crimes against God; (ii) crimes against Sovereign; and (iii) crimes against
private individuals.
The first category included such crimes as apostasy, drinking intoxicating
liquors, adultery etc. The second category included such crimes as theft,
highway robbery and robbery with murder. The third category included such
offences as murder, maiming, etc., i.e. offences against the human body.
Accordingly, the Muslim criminal law arranged punishments for various offense
into four categories. Viz., Hadd, Tazeer, Kisa, which was commutable into Diya.
Kisa Kisa or retaliation meant, in principle, life for life and limb for limb.
Kisa applied to cases of willful killing and certain types of grave wounding or
maiming, offences falling in the third category mentioned above. Kisa, or
retaliation, was regarded as the right of man and gave to the injured party or his
heirs a right to inflict a like injury on the wrong-doer as he had inflicted on his
victim.
Diya diya or Diyut meant blood money. In certain cases, like unintentional
injuries, diya was awarded to the victim on a fixed scale. In cases where kisa
was available, it could be exchanged with diya, or blood money. The injured
person or his heir could accept diya or kisa as he liked. Thus, in case of murder,
the heir of the victim could accept diya and forgo his right to claim death on the
murderer. So, also, in cases of intentional wounding or maiming, the victim
could accept diya in lieu of kisa. All these were crimes against the human body.
Practically, the punishment of diya was an alternative to kisa.
Hadd had etymologically meant boundary or limit. In criminal law, it meant
specific penalties for specific offences. The underlying idea was to prescribe,
define and fix the nature, quantity and quality of punishments for certain
particular offences which the society regarded as anti-social or anti-religious.
These offences were characterized as being against God, or in other words,
against public justice. The punishments prescribed under had could not be
varied, increased or decreased; if the offence was established, the prescribed
punishment had to follow as a matter of course. The judge had no discretion in
the matter. Some of them had punishments were: death by Stoning or

scourging, amputation of a limb or limbs, and flogging. The prescribed

punishments for certain offences were: for zina or illicit intercourse, death by
stoning or scourging; for theft, amputation of limbs like the right hand or the left
foot; for falsely accusing a married woman of adultery, eighty stripes. The hadd
punishments were severe. The main aim underlying these punishments was to
deter criminals from committing those crimes which were injurious to the
community of Gods creatures.

Tazeer Taseer meant discretionary punishments. These punishments were

inflicted at the discretion of the judge as there were no fixed rules to prescribe
such punishments. Usually, these punishments consisted of imprisonment,
exile, corporal punishment, boxing on the ear or any other humiliating
treatment. These offences could be regarded as falling in the second category
mentioned above, i.e. offences against the Sovereign. In cases of offences
governed by tazeer, the kind and amount of punishment was left entirely to the
discretion of the judge who could even invent new punishments according to his
whims and notions. Tazeer could be inflicted in several situations. First, it
could be inflicted for offences for which penalty by way of had or kisa was not
prescribed. These offences were not serious or of a heinous nature and so were
left to be punished according to the discretion of the judge. The number of such
offences was very large, e.g., use of abusive language, forgery of deeds or
letters with a fraudulent design, bestiality, sodomy, offences against human life,
property, public peace and tranquility, decency, morals, religion and so on. In
fact, the entire Muslim criminal law was based on the principle of tazeer
because they had, kisa or diya had been prescribed for a very few offences only.
The process of trial in cases falling under the category of tazeer was simple as
compared to the trial procedure in cases coming under hadd. The conditions for
conviction for tazeer offences were not very difficult. Tazeer could be inflicted
on a confession, evidence of two persons, or even on strong presumption. The
whole of this part of criminal law being discretionary could be regulated by the
sovereign. Secondly, tazeer could be inflicted even in cases falling under had
or kisa. If the proof available for an offence was not such as was required by
the law for the award of the prescribed penalty, but, nevertheless, was sufficient
to establish a strong presumption of guilt then, instead of had or kisa, some
other punishment was awarded I n the discretion of the judge. If because of
some technical difficulty, insufficiency of evidence or some other special

circumstances, had or kisa could not be awarded, then tazeer was awarded.
Thirdly, the doctrine of tazeer covered heinous and flagrant crimes, crimes
having a dangerous tendency or capable of causing, extensive injury to society.
Such crimes called for exemplary punishment, known as siyasat, because they
were detrimental and injurious to the society in a high degree and thus deserved
severe punishment, even more than had, so that others were deterred from
committing these offences. For example, for protection of the community
against dangerous characters, especially against
those who habitually
committed atrocious crimes and of whom there could be no hope of
reformation, exemplary punishment could be awarded by the ruler or his
delegate such as he might deem expedient. Tazeer punishments were thus
inflicted for meeting the ends of public as well as private justice. Even, for
cases falling under had or kisa, siyasat punishment could be inflicted in certain
situations. Siyastan meant exemplary punishment imposed on habitual
offenders or dangerous characters.
CRITICISM OF THE SYSTEM
Criticism First, the law was very uncertain. On many points there were
differences of opinion among the Muslim Jurists. This gave a good deal of
leeway to the Kazi to interpret the law and apply to it the specific fact-situation
before him. A corrupt kazi could twist the law and misapply the same. From
the above brief survey, though the Muslim law of crimes would appear to be
very severe on its face, as it sanctioned some cruel punishments like mutilation
and stoning, yet the claim could officially be made for it that as a system, the
Mohammedan law of crimes is mild; for though some of the principles it
sanctions be barbarous and cruel, yet not only is the infliction of them rarely
rendered compulsory on the magistrate, but the law seems to have framed with
more care to provide for the escape of the criminals than to found conviction on
sufficient evidence and to secure the adequate punishments for offenders.
Similarly, Warren Hastings also thought that the Mohammedan law is founded
on the most lenient principle and as an abhorrence of bloodshed. The reason
underlying this comment was that the harshness of the punishments was
compensated by the difficulty in getting a conviction. The difficulties in the
way of imposing had punishments have already been noted above. A close
scrutiny of some other salient features of the Muslim law of crimes, especially
those pertaining to murder, will prove the validity of these observations. The
Muslim law of crimes contained many illogicalities. It was based on some of

those concepts of state and social relations which the Western thought had
already discarded long ago. It suffered from complexities and a lack of system.
It drew no clear distinction between private and public law. Criminal law was
regarded more as a branch of private law rather than of public law. Its
underlying principle was that it existed mainly to afford redress to the injured; it
had not much developed the idea that crime was an offence not only against the
injured individual but also against the society as such. The crimes against God
were regarded as crimes of an atrocious character. On the other hand, crimes
against man were regarded as crimes of a private nature in which the injured
person had himself to take an initiative to claim punishment of the offender.
Only the crimes of the former nature, which, however, were few, were regarded
as worthy of public vengeance but not the crimes of the latter kind. Though the
crimes against man were punished by the state, yet the basic notion underlying
them was to give satisfaction to the injured person rather than to protect society.
The crimes against man, though no less ruinous to the peace and tranquility in
the society than the crimes against God, were, nevertheless, regarded as private
wrongs and were left to the discretion or caprice of the individual concerned. It
was left to the injured in such cases to move the machinery of the state to have
the offender punished. That was a major weakness of the Muslim criminal law.
To take an example, while murder as the most serious crime as it strikes at the
very basis of the existence of a civilized society, it looks rather irrational that
murder be regarded as a private offence while drunkenness should be deemed to
be a public offence.
The primitive character of the Muslim criminal law prevailing in Bengal, Bihar
and Odisha at the time could not be better appreciated than by surveying the law
of murder which, in the words of Rankin, was if taken as a whole, very
complicated, technical and obscure. As noted above, murder and homicide
were regarded as private grievances. An offender could, therefore, be
prosecuted on a private complaint. The state did not regard it as its duty to
move suo motu in a case of murder. The right to claim kisa on the murderer
was the hak admi, i.e. The right of the man and not the right of the public or of
God. It was, thus, for the heirs of the murdered man to claim capital
punishment on the murderer. In the absence of such a demand, the state could
not by itself inflict the punishment on the offender. Instead of claiming kisa, the
heirs could compound the murder by accepting diya from the murderer, or they
could even pardon the murderer. If the heirs of a murdered man pardoned, or
did not complain against the murderer, the sovereign could not compel them to

demand kisa. It was only when a murdered man left behind him no heir that the
judge or the kazi could claim kisa on the murderer.
The law vesting a privilege in the heirs to pardon murderers of their nearest of
kin was not only unreasonable, but was even fraught with dangerous
potentialities and gave rise to a lot of social evil by way of promotion of crime.
Warren Hastings characterized this as a law of barbarous construction, and
contrary to the first principle of civil society, by which the state acquires an
interest in every member which composes it and a right in his security. It is a
law which if rigidly observed, would put the life of every parent in the hands of
his son, and by its effect on weak and timid minds, would afford a kind of preassurance of impunity in those who were disposed to become obnoxious to it.
The misplaced power of life and death of the murderer within the discretion of
the heirs of the murdered person could lead to the commission and abetment of
crime by the heirs themselves. This aspect may be illustrated by reference to a
few typical cases which are found scattered in the Bengal Revenue
Consultations prior to 1790. A person murdered his brother to obtain a share
of his deceased fathers inheritance. Another brother of his, being the next of
kin of the deceased and thus being entitled to claim kisa, pardoned by the heirs
of the deceased for such a paltry consideration as ten or twenty rupees. How the
doctrine of diya was being misused at the time is clearly evidenced by a case at
Chittagong in which five men convicted of murder and robbery were pardoned
by the complainant for paltry sum of Rs.80/- and were thus saved from the
gallows. Human life was thus rated very cheap. Further, as a result of the rule,
Brahmin murderers often escaped the punishment of death for murdering a
Hindu, for no Hindu would dare ask kisa on a Brahmin and thus incur the
supposed sin of brahma hatya under the Hindu religion.
Muslim Law laid down that if one of the heirs of the murdered person pardoned
the murderer, or compounded with him by accepting diya, then all other heirs
were debarred from demanding kisa; they were entitled merely to their share of
the blood money paid by the criminal. According to a futwa in March, 1791,
when Mongol Das murdered his wife Amala, one of the heirs having forgiven
the murderer, he could not be punished with death; the sister of the deceased
claimed, and was declared entitled to receive, her share of dyut. In certain
circumstances, murders and homicides were regarded as justifiable, as for
example, a husband could kill a man who attempted to rape his wife; parents
and grandparents could not be sentenced to death for murdering their children or

grandchildren: a master could kill a slave without assuming any criminal

liability. Further, the Muslim law maintained a distinction between willful
murders (sabih amd). According to the great Muslim jurist Abu Hanifa, the
distinction was based not on the logical test of the intention of the offender as
revealed by the facts of the case, but on the method employed by him to commit
the crime. The nature of the instrument used to commit murder was regarded as
the test of the intention of the murderer. A murder was not regarded as willful
if it was committed by such methods as throwing the victim from the upper
floor of a house, or throwing him down a well or river, or strangling him, or
striking him with a fist, stick, stone, club, or any other weapon having no iron
and which would not draw blood. In such cases of murder, diya and not kisa,
was claimable, as the offender was regarded guilty only of sabih amd and not of
amd. He was liable to pay only blood money and could not be punished
capitally. On the other hand, if the crime of murder was committee with a sharp
instrument which could draw out blood, such as a knife or a sword, the murder
would be regarded as willful (amd) and the offender would be liable to be
punished with kisa. The balance of authority of the Muslim jurists was that a
murder committed by administering poison could not be regarded as willful,
because poison is occasionally given as a medicine also and that it was quite
possible that in that that particular case, it might have been so administered and
that the man giving it did not know that the quantity was excessive. Again,
murder was regarded as not willful (sabih amd) if a person was bound and
confined till he died of hunger, or if he was put alive into a grave till he died, or
if he was put in a room with a snake which killed him, for in all such cases no
weapon was used. The rank absurdity of the propositions was forcefully
brought out by Warren Hastings by referring to the following case which came
to light at that time. A man held the head of a child under water till it was
suffocated and made a prize of her clothes and the little ornaments of silver
which she wore. From the way the crime was perpetrated and was sought to be
concealed, there was no doubt that the object of the criminal was to commit
robbery and the murder and the extraordinary manner in which the murder was
committed was suggested to the murderer by the distinction made by the
Muslim jurists between sabih amd and amd, as mentioned above. The offender
would have been sentenced to death had he hilled with a knife or sword, even
though he might have done so in a sudden passion and not with a pre-meditated
design. But, for the horrible and deliberate crime committed in the instant case,
the criminal was held guilty of manslaughter and thus liable only to pay diya of

Rs.3, 333-5-4. Such a rule encouraged commission of robbery with murder, as

murder in most cases destroyed evidence of the crime of robbery, while its
detection meant practically no additional consequence to the criminal
concerned. The fact that the Muslim law of homicide made no reference to the
attending circumstances to show the intention of the accused while committing
the murder but took the instrument as the test thereof, and the way in which it
distinguished between amd and sabih amd, resulted in much injustice and
promoted crime in the country. A ruthless criminal could easily choose the
method of killing so that the conditions for capital sentence were not fulfilled.
A poor and indigent criminal had nothing to lose as he could not pay diya and
would not be subject to kisa, and so he would not be deterred from committing
the crime of murder. Not only murder, but even robbery was encouraged, as is
evidenced by the case mentioned above.
SETTLEMENT IN INDIA
India was neither newly discovered nor it was an uninhabited country at the
time when the British people came here. It was already inhabited by civilized
people & had a well established govt.
Introduction of English law In India
English law in India was applicable not only to the British settlers but also to
the Indians.
Charter of 1661
It is the first & the only charter which is introduced English law into the East
Indies. This charter gave introduction to Madras Presidency. Bombay &
Calcutta were founded later than 1661. In 1661, there was no general
introduction of English law in all the presidency towns. The next charter is that
of 1668 which transferred Bombay to the company & required the application
of English law in the settlement. In 1672, the Protugese law was substituted in
the Bombay towns.
Charter of 1726
The English law was introduced into the presidency towns, is the Charter of
1726, in Calcutta, Madras & Bombay on a uniform basis. The charter of 1726
was uniformly applicable to all the Presidency towns &the first regular

introduction of the English law in the three settlements is associated with the
year 1726.
LAW APPLICABILITY
1. Date of Application of English law:
There are two views to the applicability of English law. Generally courts
propounded that English law was introduced into the presidency towns in India
by means of charters. According to first law commission English law became
applicable to the presidency towns ipso facto as they were settled by the British
& the English soverignity extended over them before any charter was issued.
2. Content of English law:
As regards the English law which was introduced into the Presidency towns
by the charter of 1726 ,a national question which was arose: the whole of
English law , common law or statute , extant in England in 1726 that was
introduced into indian or were some qualification attached thereto ?
FREEMAN S CASE
In 1828 FREEMAN v. FAIRLIE, the court of chancery of England had
determined for the first time , that houses & land is in Calcutta were of the
nature of freehold property . It was held that English law was the law of the
settlement. The land in the instant case was held to be freehold of inheritance
according to the acceptation of these terms by the law of England
UNCERTAINITY OF LAW
Law introduced in presidency towns resulted in making law in these territories
very confused and uncertain. Wether a particular principle of the English law
applicable or not could not be answered definitionaly until the courts had a
chance to consider the question & hold it suitable or unsuitable to the local
conditions. Burden of which English law should be applied to the presidency
towns was left to the courts but it did not function well.

DRAW BACKS

1. DECLARE RESTRICTED
Declare restricted to only those statutes which was decided in courts rest
remained.
2. JUDICIAL DECISION NOT REPORTED
Judicial decisions was not reported
3. RULINGS DIFFERENCE
Rulings differed from courts to courts & judge to judge
4. DECLARATION ALWAYS RIGHT
Decided cases by HC & SC decisions was reversed by privicy council in some
cases
5. IT WAS NOT CLEAN WHETHER IT WAS APPLICABLE TO
INDIANS OR NOT.
How much of English law should be applied
Another question came before was that how much of English law should be
applied. Only that much of English law was applicable that suited conditions
particular to Presidency towns. As in NAND KUMAR S case forgery under
English law was considered as capital offence but under indian law it was not a
capital offence
REGULATIONS.
The govt of each presidency town could frame laws & rules for the settlement
subject to certain restrictions.
REGISTRATION
Regulation did not really play much important role in the development of the
law. One of the restriction factors was the requirement of having the regulation
registered with the respective Supreme Court; otherwise, they were to have no
effect.
SECTION 17, DF ACT OF 1781
According to sec 17 of 1781, the parties to a suit be longed to different
persuasions, and then the law of defendant was to apply. It would appear to be

reasonable that in a case where the decease was a Hindu, the Hindu law of
succession should be applied to his property.
DEVELOPMENT OF PERSONAL LAWS DURING BRITISH PERIOD
I would like to begin by sketching a background to the discussion of Personal
Law in order to highlight its development in the wider frames of colonial
sovereignty, post-Independence constitutional debates on rights and the interests
of different communities, and other legal entanglements. As many
commentators have observed, it is difficult to find a conception of law
comparable to the liberal, Post-Magna Ca..rta conception or the European
canons of civil law in traditional India. There is no central notion of law as
presupposed in the idea of Common Law with its bureaucracies, central law
courts, formal statutes, and judiciary. In particular, a central policing or
enforcing mechanism was conspicuously absent. In its place stood a variety of
socially regulative and normative rules, acara, punishments, prayas'citta
(generally included in the category of dharma) varying across different regions
and peoples. Each caste had its own svadharma (own duties). In fact, an
autonomous concept of law was not yet distinguished from ethics and regulative
norms. This would have required a theory, albeit abstract, of law and due
process, conceivably recognizing the issues of inequality, the disproportionate
distribution of privileges and denial of entitlements, legitimacy and the rights of
certain classes or groups of people. Not that such recognition was not possible
within the framework of dharma itself, but it lacked a mechanism for
codification, adjudication and enforcement of punishments. The bulk of the
dharmashastras did not actually codify the "law", or dispute, but for the large
part devoted themselves to the articulation of religious mores and ethical norms,
as Kane has painstakingly demonstrated in his monumental The History of
Dharmasastra.
Indeed, the Mughal rulers appeared to have strengthened this differential and
preferential process. The Portuguese and French missionaries found that a
tradition of rather strict observances of dharmic (for Hindus) and a Islamic (for
Muslims) and connecting social virtues existed among the judges also, so that
they could cultivate the requisite degree of detachment from the personal details
of the case before them and exercise a degree of objectivity and fair-mindedness
in their judgments. It was clear to them that equity is not something easily
reduced to law or entitlements (rights); nor could one detect much concern for
equity in custom, nor locate legal abstractions, canons, declarations (of

entitlements, rights and claims), or civil case-laws concerning due process or

distributive justice generally.
When the British arrived in India, around 1772, the administrators of the East
India Company were similarly bewildered by the diversity of customary rules,
norms and practices, moral judgments and differential treatments of
misdemeanors, as well as the vastly different views on marriage, succession,
contract, severance, property and inheritance rights. Each micro-community had
its own complex system of village-based juridical hearing courts or panchayats.
They were astounded at the absence of an overarching central authority or even
ecclesia that would systematically enact and enforce laws, rules of conduct and
social imperatives, or monitor unequivocal adherence to the common law of the
land. They were further befuddled by the vastly different regional legal systems
and configurations of group
One of the first steps was to separate out judicial punishment from other kinds
of sanctions (especially religious, and what we nowadays call civil codes or
Code Civil). This supervened on the demarcation between public moral harm, or
the potential thereof, and private conduct which the communities could manage
themselves. In theory, such a demarcation would warrant considerable debate
and could hardly be achieved as an abstract objective. But when we note how
the paradigm of English law informed the process, it is not difficult to imagine
how swiftly this was achieved. The result was a series of enactments passing the
Code of Civil Procedure (1859), the Penal Code (1861), and the Code of
Criminal Procedure (1861). Common because they cover public space. Since
their jurisdiction covered public morality, the latter Codes were deemed to be
uniform regardless of race, caste, religion, and group-affiliation. The Penal
Codes have remained on Indian statute books and continue to echo those 18th
century ideas of Common Law, and the resistance to local/traditional variety. So
lunacy is a crime; going insane could lend an Indian citizen or visitor in prison
with hardened criminals. So is the attempt to commit suicide, which is
punishable by law, even if the suicide is successful.
Under British administration (East India Company) and sovereignty (British
Charter for India), the Westminster and Common Law models were introduced.
However, the imported Rule of Law was rendered almost unworkable by the
existence in India of a great diversity of customs, cultural traditions, regional
legal systems, group identities and community memberships. Initially
colonialists tended to ignore traditional cultural practices, ritual legalism,

textual records of moral thinking (Arthashastras, Dharmashastras,

Yanjavalkyasmriti, nibandhas, Manusmirti, and so on). The subsequent attempt
on the part of the colonialists to accommodate aspects of the personal -- or an
artificially separated private area morality from the public civil and criminal
codes -- under the newly-evolved jurisdiction of Personal Law led to tensions
within the system. It would have been impossible for the British judges in the
mofussil to work the rules propounded by Warren Hastings in 1772 due to the
following reasons:
1) Ignorance of Sanskrit and Arabic languages;
2) Original book dealt with religious principles and precepts, both mixed up,
and
3) Literature on Hindu Law was very vast and undigested.
Realising these difficulties of the judges Warren Hastings made available to
them the assistance of Native Law Officers, i.e. Pandits and Kaziz . This
experiment did remain confined to Bengal, Bihar and Orissa alone but in course
of time it was extended to all those areas where the company's judicial system
was introduced. A similar system came to operate in the Supreme Courts in
Presidency Towns as well.
However, the Pandits and Kaziz were not always above board and they were not
experts. This position went on for some time by which the British Judges gained
self-confidence and they began to be critical on their dependence on these
officers. Moreover they had no trust and confidence in the integrity and honesty
of these native officers .
It would have been impossible for the British Judges in the mofussil to work the
rule propounded by Warren Hastings in 1772, prescribing the personal laws to
the Hindus and Muslims , unaided and unassisted. These Judges were not
familiar with these oriental systems of law . They had no acquaintance with the
Native languages , habits and customs . Further, they could not hope to derive
any assistance from the books containing these laws for several reasons .One,
the personal laws were locked up for the most part in two different languages,
viz., Sanskrit and Arabic, which very few Europeans learnt, for "neither of them
leads to any advantage in worldly pursuits." The Judges could not therefore read
or understand the books dealing with the principles of these laws , Another
difficulty was that these original books were not pure books of law but dealt

with religious principles and precepts as well ; law, morality, ethics, were all
mixed up in them; and it was difficult to ascertain as to what was obligatory , or
mandatory, and what was merely directory? In the third place, the amount of
literature pertaining to Hindu laws was very vast , developed as it had been over
a long period of time and at various places, and accordingly, it presented a
confusing picture of incoherent and undigested mass. The principles of these
systems were shrouded in extreme vagueness and uncertainty, and this made the
risk of administration of Justice according to those laws extremely difficult and
complicated. This was much more true of Hindu law because for all the duration
of Muslim rule in India , the progress of Hindu Law was arrested as it was
administered not through any formal agency, like the courts , but through such
informal agencies as panchayats and private arbitration. The law was thus more
traditional than written except in a large number of ancient religious books , and
the living law was somewhat different from the written law. On many points of
law, the religious books contained inconsistent doctrines.
The British, in
consultation with indigenous legal experts, classical jurists, pandits and the
ulamas respectively, devised the so-called Anglo-Hindu for Hindus and
Mohammedan law or later Anglo-Muslim Laws for Muslims (Fyzee, 1975: 14),
plus separate personal laws for Indian Christians. For example, new acts came
into being for them, Native Converts Marriage Dissolution Act 1866, The Indian
Divorce Act 1869, and the Indian Christian Marriage Act, 1872. These govern to
this day Christians of all denominations even though there are variations on
practices within them. There were Personal laws for
Parsis as well (but only one or two actual Acts were passed, notably Parsi
Marriage and Divorce Act 1937; otherwise Parsis may appeal to general civil
law, where such could be identified, or be covered under Hindu Acts, such as
the Indian Adoption Act enacted much later to which though the Parsis were
initially resistant, and from which the Muslims have been exempt.). (Jains and
Sikhs were included under Hindus, although there were some concessions in
certain areas of practices for these communities as well.) The history of this
process is complicated, and there have been ambivalences over what should
prevail: customs, tradition or shastric, i.e. textual law If the latter, what about
groups that do not have shastric or authoritative scriptural tradition or who are
discriminated adversely under brahmanicalshastras (e.g. Manus dismissal of
shudras, lowest in the four-poled formal caste hierarchy, and tribals and socalled ?untouchable? peoples, who have no citizens status in Shastas, and
customary norms towards them could vary enormously)

In early 19th century the colonial government set about documenting native
religious practices so as to bring them closer to the Brahmanic textual tradition,
since this fitted best the privileged Western model of consistency and uniformity
over variations in indigenous interpretations (Kannabiran, 1995, WS-59)
Likewise, with codification of other Hindu laws in process, such as the Suttee
Regulation Act 1829 and the Widow Re-Marriage Act, 1856, due largely to the
efforts of social reformers like Raja Ram Mohan Roy [Rai] and
IshwarachandraVidyasagara, came into force. But Hindu patriarchy still
attempted to legitimate Sati (Suttee), or widow self-sacrifice, under traditional
Hindu dharma or religious law since sati was never considered a crime or felony
under Hindu customary law; while Muslim men petitioned for recognition of
polygamy under Islamic law. The East Indian Company administrators even
extended shastric laws laid down by Manu, Yajnavalkya to the Dravidic south as
well in the absence of discernible customary law governing any class of people,
as though they were all shudras in the eyes of Manu. Devadasis or temple
dancing girls were suddenly classified as prostitutes and their adoption as well
as rights to succession, inheritance, custodial guardianship, etc., were denied
even though traditional Hindu law had recognized these rights. It was the Indian
judges and legates who pushed such cases and counter arguments until the
British benches would cave in, but not without sovereign censure. After 1868
customs could overwrite the written text of the law if the antiquity of the former
was proved. The Privy Council placed shackles toward digging too far back into
scriptural sources, as this had proved all along to be an effective strategy for the
brahmanical group to legitimate and defend its tight control over the social
caste-hierarchy order through an almost ingenious selective literacy process,
non-violently thwarting any tendency towards centralizing statecraft or political
hegemony of other competing groups, including warrior-caste kings and their
advisors (who comprised mostly ascetics and brahmins anyway).
Gradually, the colonial Codes based on universal principles of the science of
legislation supplanted Hindu law, both textual and customary. So, for example,
temple dancing girls usually orphans came to be classified as prostitutes, as
Hindu law had permitted extended sexuality but this crossed the threshold of
colonial tolerance. The IPC here as elsewhere was essentially privileging the
Orientalist construction purely from high caste textual sources of the ideal of
Hindu womanhood projected, in the Vedic Aryan woman as the embodiment of

Hindu culture, and one devoted to monogamous conjugality (Uma Chakravarti,

1990). Again, of course such rulings did not go unchallenged, and the
legitimacy of customary law for Hindus was re-invoked by Indian judges.
For Muslims personal law or Aalim, the colonialists continued largely the
Hanafifiqh or legal literature (which Sunni Muslims follow), notably al-Hidaya
or hadiths, the pronouncements and practices of the Prophet Muhammad (m-pu-h), from which in turn are deduced model and analogue traditions (sunnah), or
rule of law, especially under the jurisprudential school of Shafii, with some
admixture of custom and varying juridical sources, (e.g. FatawaAlamgiri). But
the final authority rests with the Quran, which for the Muslim is the
incontestable revealed Word of God. It is said that Muslim law in India has
signs of being among the oldest continuing form of Muslim law which has not
been eroded by excessive reforms, secularization or civil interference. And
being Hanafi it is comparatively more liberal and in principle amenable than the
literalist Hambali or Hadooth toward which Pakistan's state-religion or fiqh
seems to be moving .
After 1864 indigenous legal advisors were dispensed with and the British judges
took it upon themselves to learn Sanskrit or Persian or Urdu, and interpret and
pronounce upon Hindu and Muslim laws, while increasingly drawing on
English legal principles and procedures to work through these customary law,
usage and shastric laws. Often the colonial courts simply interpreted for
purposes of specific judgments rather than reform existing practices. Precedents
and case laws were built up this way. The consequence in practice was that
sometimes the laws were stretched too far towards arcane customary practices
which even the community found aberrant at the best of times. At other times
English common law wisdom subverted indigenous proclivities or preferences
on the pretext that ancient usages stand in the way of social progress and
utilitarian objectives , i.e. greatest happiness for the greatest number.
In any case, critics all along have argued that the Personal Law system as reinvented by the British in India has been bogus (Derrett), at best hybrid
(Galanther), and at worse, an egregious blunder (Gandhi), a queer mix of Indian
and Western traditional moralism (Nandy), that hardly reflect the coordinates of
the lived culture, i.e., They are far from being normative.

And although these have governed a narrower area of personal or private

community conduct - pertaining to family law, marriage, inheritance, kinship,
adoption, succession, collective property title, and so on - they nevertheless
have specific implications for thinking on issues of citizenship, rights and
obligations (including the duty of the State towards its citizens within varying
social and cultural contexts). Prima facie, this tinkering has made room for
inequality and preferential treatment depending on the subject's community
membership claims and the particular personal law involved. The Indian
Divorce Act 1869 put a ceiling on the maintenance amount to be given to the
estranged wife (one-fifth of the average husband's income; and even then
Muslim personal law might override this according to its own Qur'anic or alHidaya ordinances. The Registration of Mohammedan Marriages and Divorces
Act 1876 made registration of Muslim marriages, nikah-nama, voluntary or
good enough if records are kept with the Qazi (judge) in the masjid or mosque
precinct, etc. And although the marriageable age, originally established at 18
and 15 years have changed to minimum 21 and 18 years for male and female
respectively, no provisions are there for dissolution of under-age marriages if
contracted under a Qazi's nose, and so such marriages are not challenged. The
Guardians and Wards Act, 1890, recognized only the father as the natural
guardian of children born or adopted by a couple; woman's right to guardianship
is neglected; and when guardianship is reinstated to her full custodial rights
after a certain age remain with the father, locking the kid into the father's
business or income-raking schemes. Even worse for adopted children as Muslim
and Parsi religions did not accept adoption since would mess up inheritance
lineages.
This is a list of the significant legislations in the areas of Personal laws passed
during the British presence in India, they would include the following (although
these are to be read against the grain of the enormous archival collections of
case-law, cunning jurisprudence, precedents, appeal to customs, and various
hybrid transcreations of classical and traditional laws on the judges? benches for
each of the communities affected):
Hindu Law
Sutte Regulation, XXVII of 1829.
Caste Disabilities Removal Act 1865
Hindu Widows Remarriage Act 1856

The Hindu Gainful Employment Act 1930

Muslim Law
Muslim Personal Law (Shari ?at) Application Act 1937
Shari ?at Act 1937
Dissolution of Muslim Marriages Act 1939
Parsi Law
Parsi Marriages & Divorce Act 1936
Christian Law
Native Converts Marriage Dissolution Act 1866
Indian Divorce Act 1869
Indian Christian Marriage Act 1872