I. Introduction: Change of the Indian Legal Landscape
According to the Indian legal system, before the British invasion, a complex pluralism existed, with Hindu Dharma Sastra and Islamic Sharia coexisting alongside local, customised rules to manage a multicultural population. But with the introduction of the British East India Company, there was a systematic change where colonial exploitation and the imposition of Victorian morality were given a high agenda at the expense of indigenous legalists. Through the analysis of the shift in traditional religious jurisprudence to a centralised, textualised colonial code, we can see how the law was applied by the administrators not only to an end (order), but as a strategic means to an end (governance). The colonial legal project essentially reorganised the state-individual relationship that had been restructured throughout as part of a colonial legal project, as white saviour narratives condemned by Gayatri Chakravorty Spivak to the panoptic systems of surveillance theorised by Michel Foucault. This question examines how the British transformed a decentralised tradition of personal restitution and traditional adaptability into a rigid and inflexible judicial system, which remains the foundation of the contemporary Indian Penal Code.
II. The “White Saviour” Justification
Ever since the British came to India and brought with them their legal systems, they tried to portray the barbaric nature of the deed, which many times was metaphorical and not exercised; they tried to portray themselves as the ‘White saviour’ of the uncivilised brown subjects. As Rosanne Rosher argues, many Orientalists tried to study the Indian traditions not merely out of academic curiosity but as a pragmatic tool for governance. However, let’s just investigate the instance of Sati to understand how hypocritical it was of the colonists. They condemned the tradition of sati not solely because they wanted to uplift the women but also to portray themselves as liberators, as Gayatri Chakravorty Spivak rightly says, “White men saving brown women from brown men”. At the same time, between the years of 1560 and 1630, back in Europe, they were still burning women as witches at the stake.
III. Indigenous Hindu legal traditions
Before the British laws, the Hindu Legal System was mainly derived from the Shrutis, Smritis, Commentaries, Digests and from Customs or Acharya. The two main schools of Hindu Law are Mitakshara School (followed almost throughout India), and the Dayabhaga School (mainly followed in Bengal and Assam). The work of Rosane Rocher shows that the impact of colonialism on the Indian legal systems was more of a textualization process instead of a direct substitution of laws. She states that the initial British administrators, such as Warren Hastings, were trying to govern Indians according to their traditional laws, rather than evading the needless coercive laws of foreign countries. This gave rise to the Anglo-Hindu Law in which the British officials used a few Hindu pandits to collect and translate the Sanskrit Dharmashastras into usable codes, such as in the Code of Gentoo Laws compiled by Nathaniel Halhed. Rocher underlines that even though this system was intended to retain the traditional law, it in fact radically changed it by depriving local customary practices of their natural flexibility and substituting them with a strict, English-style case-law system.
IV. Pre-Colonial India: Islamic Legal Framework
The Muslim law in India before British rule was an advanced and decentralised law that was based on the Sharia law, in which the Hanafi school of jurisprudence was the main law governing the state during the Sultanate of Delhi and the Mughal Empire. Justice was served by a multi-level structure of courts, with the local village courts being at the bottom and central tribunals of the imperial courts being at the top and aided by the Muftis (legal experts), who would often defend the complicated scriptural points through the application of Fatwas. Although the Muslims were subjected to the strict control of religious texts, such as the Quran and the Sunnah, in personal affairs including marriage and inheritance, some level of legal pluralism was also in place; the non-Muslim communities were, in most cases allowed to have their own customary and religious laws in personal affairs, the rulers also tended to supplement the religious law with the zavabit (secular state decrees) so that they could be able to meet the administrative and criminal necessities. The criminal law employed different types of punishment, such as Hadd (fixed penalties), Kisa (retaliation) and Tazir (discretionary justice), such that, although the sovereign was the spring of justice, the day-to-day administration of law was still closely connected with the local practice and the interpretation of the law by jurists.
Jorg Fisch, in Cheap Lives and Dear Limbs (1983), illustrates the radical change (1769-1817) of Indian criminal justice with the establishment of English moral and administrative norms in the role of the old Islamic legal norms by the British East India Company. The book suggests that the cultural paradox behind the influence of colonialism was that the British were repulsed by Islamic methods of corporal punishment, such as mutilation, which were the practice of viewing limbs as too precious to cut, but could not accept the indigenous regime of toleration of homicide (which permitted a system of settlement through blood money). As a result, the colonial government concentrated judicial authority by repealing mutilation in exchange for imprisonment and, at the same time, ensured that the state was the sole determiner of life and death by stipulating the death penalty for murder. This change took the law out of an organic framework of private redress and community-imposed justice to a strict, state-regulated apparatus of punishment, and formed the structural and moral basis of the future Indian Penal Code and the present-day Indian legal system.
VI. The Surveillance Mechanism of the Colonial State and Panopticons
Panopticism by Michel Foucault explains how this shift in the sovereign power, through spectacular, visible punishment, has given way to a more pernicious in our day, disciplinary power, based on continuous surveillance and records. This framework is still employed by Indian legal historians as a way of explaining why the British substituted the Mughal-era irregular and public justice with a social panopticon of codified laws, including the Indian Penal Code, and bureaucratic instruments such as the census and land surveys. These processes resembled those of the Panopticon developed by Jeremy Bentham, which led to the establishment of a state of the so-called permanent visibility that compelled colonised subjects to internalise the gaze of the state and manage their actions by themselves. Not only did this alteration reform the law, but it also aimed to establish the so-called docile bodies by an all-powerful administrative gaze that would make power operate automatically by predictable legal frameworks instead of relying on the direct, physical force of the sovereign.
VII. Conclusion
Therefore, the colonial law system essentially changed the Indian pluralistic indigenous laws that were adaptable to those of a codified, central, and state-controlled system that was intended to govern and control. The British discredited local traditions and flexibility by applying the Hindu and Islamic law selectively in the process of imposing Victorian morality and bureaucracy. This heritage is still visible today in the Indian legal system in the form of colonial-era institutions like codified criminal law, subordinate courts, and high value of state control over justice, most prominently in the legacy of the Indian Penal Code and colonial legal jurisprudence.
Bibliography
Fisch, Jörg. Cheap Lives and Dear Limbs: The British Transformation of the Bengal Criminal Law, 1769–1817. Wiesbaden: Franz Steiner Verlag, 1983.
Foucault, Michel. Discipline and Punish: The Birth of the Prison. Translated by Alan Sheridan. New York: Vintage Books, 1977.
Halhed, Nathaniel Brassey. A Code of Gentoo Laws, or, Ordinations of the Pundits. London: Printed for the Governor-General and Council of Bengal, 1776.
Rocher, Rosane. “British Orientalism in the Eighteenth Century: The Dialectics of Knowledge and Government.” In Orientalism and the Postcolonial Predicament, edited by Carol A. Breckenridge and Peter van der Veer, 215–249. Philadelphia: University of Pennsylvania Press, 1993.
Spivak, Gayatri Chakravorty. “Can the Subaltern Speak?” In Marxism and the Interpretation of Culture, edited by Cary Nelson and Lawrence Grossberg, 271–313. Urbana: University of Illinois Press, 1988.
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