The British rule was introduced into India by the assumption of Diwani by the East India Company in 1765. But the actual influence of the British administration, particularly in the development of the Hindu law, could not take place so prominently before the middle of the 19th century. The vague formulae like the ‘justice, equity and good conscience’ made courts deviate from the strict principles of Hindu law and to introduce various provisions of English law into it. Judicial trials like the trial of Raja Nand Kumar highlighted the court’s disregard to the personal laws. In this case, the court applied the English law regarding criminal matters which was harsh and severe. The Anglicisation of personal laws made these laws secular and progressive, but such imposition of English law had its disadvantages too.
Justice Equity And Good Conscience
The Regulating Act of 1781 provided that in those cases where there ‘was no specific directions regarding the law which the courts were to apply, the judges had to act according to ‘justice, equity and good conscience’. The maxim provided a theoretical legal basis for the courts to decide cases for which no law had been specifically provided. The maxim constituted the residuary source of law. In simple terms, it meant nothing else but ‘discretion’ of judges. The maxim thus opened the door for law-making by the judges from case to case.
There were three sources upon which the courts could draw for principles to decide cases within their discretion under this maxim. First, the personal laws of Hindus and Muslims was applied. Thus, in matters of contract, for example, court applied, as a matter of good conscience, ascertainable principles of the Hindu or Muslim law even though contract was one of the subject matters for which courts in mofussil were not required to administer personal laws. Secondly, the courts applied the customs in the name of justice, equity, or good conscience. The third source was the English law. The courts started interpreting the maxim to mean English law so far as applicable to the Indian situation.
The English barrister-judges of the High Courts had a natural bias in favour of their own law and they began to base their decisions on the rules of English law. Further, the Privy Council was the ultimate court of appeal from India from 1833 onwards, whose judges interjected their own notions of justice and equity (which were based on English law) into the Indian legal system.
Thus, slowly and gradually, the English law began to infiltrate into India. The wide door of ‘justice, equity and good conscience’ made it possible for the courts to fill in the vast gaps existing in the substantive law of the country with the principles underlying the English common law and statute law. The position became established through a number of judicial pronouncements of the High Courts and the Privy Council that ‘justice, equity and good conscience’ meant the rules of English law so far as they could be regarded as applicable to the Indian circumstances (Vardem Seth Sam v Luckpathy).
At times, the native law and usage were supplemented, modified and superseded by English law. In Collector of Masulipatam v Cavaly Vencata, a principle of English law was applied in preference to the Hindu law. On the death of a brahmin zamindar his widow took a widow’s estate in the zamindari. She died and there were no heirs of her husband to inherit the zamindari. It was argued that according to the Hindu law, property of a brahmin never escheated to the king. The Privy Council held that this question could not be determined wholly and merely by the Hindu law. On the death of a Hindu, his heirs would be ascertained by the Hindu law. But the Crown had a general right to take by escheat the land of a Hindu subject dying without heirs even though he was a brahmin.
However, there was judicial selectivity in applying the principles of English law in the mofussil. In Khwaja Muhammad Khan v Husaini Begum, an agreement was entered into between the plaintiff’s father and the defendant, plaintiff’s father-in-law, in which he agreed to given Rs. 500 per month to her for her marriage with his son. The plaintiff was minor at the time. She was held entitled to enforce her claim although she was not herself a party to the contract. The Privy Council observed that “in India, and among Mohammedans, among whom marriages are contracted for minors by parents and guardians, it might occasion serious injustice if the common law doctrine was applied to agreements entered into in connection with such contracts.”
The process of reception of English law through the agency of the judiciary continued unabated during the 19th and 20th centuries. It had both its strong as well as weak points. Its advantage lay in the fact that it helped in the development of a number of different branches of law in India for which perhaps there was no precedent in the indigenous law. For example, in the law of torts, the Indian courts lifted bodily the whole mass of English law, as there was nothing in India to fall back upon for the courts in this area. Further, instead of borrowing legal principles from any legal system, the judges were required to look to one source only and this introduced some element of certainty in an otherwise uncertain Indian legal system.
However, the drawbacks and weaknesses of the process of receiving English law through judicial decisions were many. Not only such English rules as were suitable to India, but even a few rules of technical nature, or those which were the product of peculiar conditions in England, were made applicable. Thus, some rules of English law which were not consistent with the customs, traditions, habits and institutions of the Indians found their way into the country. Further, the judicial decisions on similar points are not always uniform or coherent, because the notions of equity, justice and fair play varied from judge to judge. No litigant could be sure as to what legal principles would be applied by a particular judge to a particular factual situation to decide the matter. As the conflicting precedents go on accumulating, the task of ascertaining the law applicable to a particular case becomes relatively more and more difficult. Therefore, a need to codify the law was felt.
Anglicisation Of Hindu And Muslim Law
The personal law of the Hindus governs such topics as marriage, adoption, joint family, debts, partition, inheritance and succession, women’s property, maintenance, etc. Similarly, the Muslim law governs the Mohammedans in matters of marriage, dower, divorce, inheritance, wakfs, etc.
British rulers adhered to the policy of applying the personal laws to the Hindus and Muslims. Warren Hastings was convinced that it would be a great evil to impose on the Indians a foreign legal system. The policy of preserving personal laws of the Hindus and Muslims in family matters was reiterated by Cornwallis. The 1793 Regulations declared that the aim of the Government was to preserve to the Indians the laws of the Shastras and the Koran in the matters to which they have been applied.
However, British rulers began with the policy of non-interference in the personal law, but gradually they began to assert themselves supported by a strong fraction of the public opinion. The ancient personal law was found to be too rigid and outdated in the modern socio-economic conditions of the society. The legislature began to introduce new laws modifying old ones and the courts of justice also began to pronounce judgments which were not always with the genius of the orthodox Hindu system of law. However, the legislature moved mostly in response to the strong pressure of reformist section of the Hindus favouring the proposed changes. The changes which took place were more in Hindu law than in Muslim law and the reason was the flexibility and the liberalism of Hindu law and the Hindu community vis-a-vis the orthodox and rigid attitude of Muslims and their law.
For ascertaining the actual position of the laws of Hindus and Muslims and to make them available to English judges it was necessary that the authoritative works should be compiled and produced in English language. Warren Hastings prepared a Code of Hindu Laws in 1775, which came to be known as Code of Gentoo Laws. Similarly for ascertaining the position of Muslim law, Fatwa-e-Alamgiri was translated. Justice Jones of the Supreme Court of Calcutta produced a work on Mohammedan Law of Succession and the Institutes of Hindu Law in 1794. Later, Mayne wrote Treatise on Hindu Law and Usage (1887), Neil Daille wrote Treatise on the Law of Inheritance (of Muslims), etc.
Personal Laws and Legislation
A few statutes were enacted during the British period introducing reforms in the Hindu law: (i) ameliorating the condition of Hindu women, (ii) getting free Hindu society of some long standing social evils, (iii) loosening the rigidity of joint family system and thus increasing transferability of property, (iv) sanctioning religious conversions, etc. Some reforms were also introduced in the Muslim law.
(1) The Cast Disabilities Removal Act, 1850 – This Act abolished the principles of the Hindu and Muslim laws according to which on conversion from his religion a man had to gave up his all rights in the property.
(2) The Hindu Widows Remarriage Act, 1856 – The Act allowed remarriage of the widows in certain circumstances.
(3) Act III of 1872, Act XXX of 1923 and Arya Marriage Validation Act, 1937 – All these Acts provided for inter-caste and inter-religion marriages.
(4) Laws of Wills – The system of Wills unknown to Hindu law was introduced into it by various Acts including the Indian Succession Act, 1925.
(5) The Majority Act, 1875 and the Guardian and Wards Act, 1890-The first Act fixed the age of majority of 18 except in case of marriage, divorce and adoption. The latter Act was made
applicable to a Hindu if his guardian was appointed by the court.
(6) The Hindu Law of Inheritance Act, 1928- It changed the order of inheritance and succession among Hindus.
(7) The Hindu Women’s Right to Property Act, 1937- It created a life interest of a widow in the property of her husband after his death. Previously, there was no such provision in the Hindu
(8) Child Marriage Restraint Act, 1929 – The Act specified the minimum age of marriage for a child although the original Hindu law did not make any such provision.
(9) The Waqfs Act, 1913, Shariyat Act, 1937 and Dissolution of Muslim Marriage Act, 1939- The Shariyat Act put the Khojas, Memons and Vohras under the Muslim law in all matters. The Dissolution of Muslim Marriage Act gave the Muslim wife the right of judicial separation from her husband which was uncertain in Muslim law.
Personal Laws and Courts
The judicial decisions reoriented the Hindu law in two ways: First, the various principles of English law have been introduced into Hindu legal institutions. Secondly, the development of Hindu law was arrested by the English judges and they made it a rigid system devoid of natural growth.
Thus, introduction of English law into Hindu law was both advantageous (removal of age-old evils of Hindu law) and disadvantageous (some English rules ill-suited to describe the Hindu law concepts, distorted the Hindu law). Much of the English law was introduced under the maxim ‘justice, equity and good conscience’, as discussed earlier. The important changes made by the courts were as follows:-
(1) Factum valet – “A fact cannot be altered by hundred texts” – this principles was applied by Jimutvahana in Dayabhaga to the absolute right of the father to alienate the family property till he is owner of it. This principle was applied by the courts to other aspects of law also such as marriage and adoption.
(2) Debts – The Mitakshara school of Hindu law exempts the joint family property from any liability of personal debts of any members of the family. But the courts have changed this law by laying down that sons are under a legal duty to pay the debts of their father out of joint family property unless the debts are for immoral purpose, and, that the interest of a coparcener in the undivided coparcenary property is saleable in execution of a money decree against him.
(3) Adoption – According to Hindu texts, an only son could not be given or taken in adoption but the court has held that even an only son could be adopted.
(4) Doctrine of spiritual benefit – The Privy Council declared that adoption of a son was pure and simple a religious institution meant to confer spiritual benefit on the adopting father. The doctrine of spiritual benefit had no foundation either in the writings or in any usage or custom among any class of Hindus.
(5) Wills – The Hindu law never recognized any form of wills, but the British courts introduced this principle into Hindu law.
(6) The concept of restitution of conjugal rights was introduced and with it the English doctrine of cruelty.
The joint family tenure came to be referred to as a coparcenary. The term ‘coparcenary’ came to be used to describe those within a Hindu joint family who are entitled to inherit the family property by survivorship.
In the beginning concentration of the British remained largely, in or around their settlements where they were governed by their own laws. The Supreme Court of Calcutta, via Regulating Act 1773, was given exclusive jurisdiction on the British subjects in the mofussil in civil and criminal matters, However, the constraints of distance, high costs of litigation, etc. discouraged the natives to drag his white adversary to Calcutta Court. The result was that British subjects in the mofussil enjoyed a virtual immunity from law enforcing and law administering agencies.
Lord Cornwallis in 1787 provided that a British subject, who sued a native in Company’s court in the mofussil, shall’ve to furnish an undertaking to be bound by court’s judgement. He further required in 1793 that for petty disputes (upto value of Rs.500) a British subject residing 10 miles beyond Calcutta shall execute a bond submitting himself to the jurisdiction of the adalats in disputes with natives.
The Charter Act, 1813 provided that those staying beyond 10 miles from Calcutta shall be subject to the civil jurisdiction of the adalats. But here again they were given the privilege of taking an appeal to the Supreme Court rather than to the Sadar Diwani Adalat. When courts of munsiffs and sadar ameens, manned by natives, were created in 1814, the British were exempted from their jurisdiction and their cases could only be taken up by Mofussil Diwani Adalat, usually presided over by an Englishman.
Lord Macaulay deprecated the privilege given to the British by Charter Act of 1813 – “We proclaim to the Indian people that there are two sorts of justice, a coarse one which we think good enough for them, and another of superior quality which we keep for ourselves. If we take pains to show that we distrust our highest courts how can we expect that the natives of the country will place confidence in them”.
As a result, the privilege was abolished by the Act of 1836, despite stiff resistance put up by the British residents in Calcutta. In addition, the Act placed them under the jurisdiction of all the courts of the company in the mofussil.
Although the Regulating Act placed the British and the Europeans in the mofussil under the Supreme Court’s jurisdiction in Calcutta in criminal matters, the requirements of procuring an arrest warrant from the court, virtually, ruled out any action against them. As a result Lord Cornwallis, in 1787, placed the Europeans under the jurisdiction of Mofussil Faujdari Adalat at par with natives, but in case of the British he could authorise the collector magistrate to arrest them and, if prima facie evidence so justified, send them to Calcutta for trial by the Supreme Court.
The Justices of Peace (selected from amongst the magistrates or any other British subject or covenanted servant of the Company in the mofussil) also continued, like the district magistrates, to commit the British offenders to Supreme Court for trial. Under the 1813 Charter, Justices of Peace were empowered to punish petty British offenders by a fine not exceeding Rs.500 and, in case of non-payment thereof, by imprisonment not exceeding 2 months; and even this conviction could be removed to the Supreme Court for scrutiny under the writ of certiorari.
The Charter Act, 1833 sought to subject the British, by implication though, to the same laws and courts as natives, when it directed the Government of India, not to alter the exclusive jurisdiction of the Supreme Court to sentence the British to death, without the express sanction of the Court of Directors which meant that in other respects all could be put on equal footing. In 1843, only the privilege of removing by certiorari to the Supreme Court the conviction of the British subjects by the Justices of Peace, was abolished.
Even after the I.P.C. and Cr. P.C. were put into operation and the High Courts established, the discrimination conitnued. Ilbert Act of 1884 designated the District Magistrates and Sessions Judges as Justices of Peace and provided for trial of the British by them with the help of a mixed jury. The Cr. P.C. Amendment Act in 1923 abolished the right of the British to be tried solely by the white judges/magistrates. And if they were conferred the privilege of being tried by a majority of whites in the jury, so were the Indians entitled to demand so. The Criminal Law (Removal of Racial Discrimination) Act 1949, passed by the Indian Legislature, took away, finally, this right of the British also.Comments – The racial discrimination was not confined merely to administration of civil and criminal justice. It had spread its tentacles to the conditions in jails, to the legal profession and to the social life in the country as a whole, which was very humiliating indeed. It was only with the independence of India that it could become possible to get rid of this cancerous malady.