2 - The Foundations of Modern Legal Structures in India

Summary

How did colonial rule gradually transform the legal systems of India? On what sources did the colonial administrators rely? In what ways did their focus on scriptural, religious sources frame and define the legal status of women in modern India? How was custom a challenge to early colonial formulations? Did the involvement of nationalist reformers substantially alter the reliance on scripture? How did early feminist interventions alter the picture? And which of these legacies continues to shape the legal status of women in contemporary India?

The East India Company (EIC) first gained political and economic control over India when it was granted the revenues of Bengal in 1765. Since it was more than just the new landlord of this part of India, the Company was compelled to fashion a legal–juridical apparatus for its new dominions, primarily to ensure the steady and painless yield of revenues that it had been granted. Following the first flush of victory, the EIC discovered that this was no easy task. For one, the British had no real understanding of the agrarian systems of India and the range of rights that existed on land, which bore no resemblance to the relatively clear-cut alienability of land in Britain, which, as E. P. Thompson has shown, was itself only a recent development then. Also, British experience of the administration of its other colonies hardly prepared it for the first bewildering encounter with India and its many ‘non-state’ legal systems. In the colonies of North America and the Caribbean, according to Bernard Cohn, non-state legal systems were quickly replaced by state systems and, before long, were governed by institutions that were primarily an extension of the basic political and legal institutions of Britain. Indigenous populations of these colonies were quickly subjugated or simply massacred by earlier conquistadors, but India appeared to have recognizable institutions and codes which had the force of law, for which there were no British equivalents. Before long, it also became clear that Indian territories could not be governed without a better knowledge of the Indian languages of governance (Persian and Sanskrit) and ‘traditions’ and ‘local usages’ in addition to a detailed knowledge of the better-known legal texts on which the indigenous people appeared to rely.