The roots of present day law lie deep in the past. The present day judicial and administrative set up is the result of the modifications and adjustments of the systems that were present in the past. Therefore it is necessary to have an insight into the background of the present systems. The systems which were functioning in the past had to face a number of problems and underwent constant change. This was done so that the judicial and administrative systems meet the needs of the changing society. The crux of the whole system i.e. the essence was maintained. It was modified and altered to better the systems in place.
The British rule was established in India in 1600.this was a unique event in the history of India and the world. The British came to India only for commercial interests. In 1600,queen Elizabeth issued a charter-the charter of 1600which settled the company's constitution, powers and privileges. The company could formulate its own rules and regulations for governing itself and for the betterment of its trade. Only condition was that the laws so formulated should not be repugnant to the laws of England. So here one can see the immunity or privilege that a British servant enjoys. Factories were established. The factory was a place consisting of offices, residences of company employees, warehouses for storage of goods. These factories served as bases for the growth and expansion of British power in india.As time went by, a factory expanded to become a province and province expanded to become an empire.
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The early judicial set up
The importance of judicial system was realized soon and arrangements were made. The judicial set up was very elementary in all the three presidency towns initially. It was a very elementary form of judicial set up. Justice was delivered by non lawyers mainly traders and merchants. The courts were under heavy executive control. A number of charters were issued consequently. In 1781, the powers of court were curtails vis-à-vis the executive. An important feature of the Indian judicial system before 1862 is the existence of two parallel systems of court-the supreme court in the presidency towns and the Adalat system in the territory known as mofussil outside the presidency towns. These two differed from each other to a great extent. The Supreme Court followed the laws of England or rather was bound to follow the laws of England. All the charters made sure that the English laws were kept in mind while making laws or giving judgments. On the other hand, the areas knows as mofussils were not governed by any charter as such. In the moffusil,the predominant population was Indian. The adalat system administered the indigenous Hindu and Muslim laws.
The early judicial systems lacked 2 basic elements.
1-a well regulated system of courts
2-uniform body of law
No doubt, a sincere attempt was made to establish a judicial system. But there were some defects. The administration of justice was tardy and slow. The cost of litigation was initially high and unaffordable making justice unavailable to the poor for a fairly long time.
The court fees were kept high because the government wanted the judicial administration to pay its way. This attitude was there since the time of Warren Hastings even though Cornwallis undertook efforts to correct the same. Thus we see how the roots of our present day systems lie deep down in the past. Some laws were introduced on an experimental basis. The whole system in place in the present is a result of trials and errors in the past.
Many governor generals and viceroys came to India. They were known for many things. If some were known for corruption some others were known for the reforms they brought about. Warren Hastings w\at some point was corrupt but was also remembered for his services and the impact he had on the judicial set up.
Warren Hastings was born at Churchill Oxfordshire on December 6, 1732. After the completion of his studies, he moved to Calcutta and joined the British East India Company. He was given in charge of a factory.
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Warren Hastings was became the governor general of Calcutta. The directors did not issue precise directions. This means that there were no stringent rules and regulations laid down that had to be followed. Warren Hastings was allowed to adopt any regulation that would act as an advantage to the company and would free the riots from the oppression of zamindars. This meant that Hastings was given some amount of freedom to formulate rules. The rules could naturally not be repugnant to the rules in England and in this case could not favour only the zamindars we can see the effort to give protection to the riots. Revenue collection and administration of justice had an extremely intimate or close relationship in about 1771.After the mughul empire broke down, the power of Nawab was weakened to a great extent. Most of the powers was in the hands of zamindars who naturally misused their power. Kazis were appointed as a matter of official favour. So the administration of justice suffered. He brought about the
Judicial plan of 1772
In this plan Hastings introduced mofusil diwani adalats in each district.
it was authorized to decide all civil cases like disputes relating to real and personal property, inheritance, marriage, caste, debts, disputed accounts , contracts, partnerships and demands of rent. In all suits regarding inheritance, marriage, caste and other religious institutions, the laws of the "Koran with regard to Mohammadens, and those of the shaster with respect to the Hindus," were to be applied.
This means that for the Hindus, Hindu law will be applied and for Muslims, the Muslim law will be applied. This is with respect to civil cases. Native law officers, kazis and muftis were appointed to help the collectors who were essentially Englishmen administer justice and familiarize them with Hindu and Muslim laws as they had no much knowledge about the Indian religions.
Mofussil fauzdari adalat was established for deciding criminal cases. The adalat had composition same as that of mofussil diwani adalat.
Warren Hastings exhibited put his desire of imparting impartial and inexpensive justice to practice. The plan of 1772 was based on division of authority between the nizam and the diwan. Accordingly, separate courts were established for civil and criminal justice. The administration of civil justice was taken over by the English judges. However, the criminal justice was well within the hands of the nawab and not the collector. Justice in criminal matters was left to Muslim judges.
Although hasting was aware of the irrational and disproportionate features present in the Muslim criminal law, he did not affect any changes except imposing drastic penalty for dacoits. This he did only because he felt there was no other way of curbing this crime. The minor steps he took to bring about minor changes was not so that he interfered. It was only because he thought it was necessary to bring about these changes
In civil law, both Hindu and Muslim laws applied. But in Muslim law, only Muslim law applied.
In any case it would not be possible for the British judges to dispose justice in most matters because
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 vast.
Realizing these difficulties, he made available local authorities like the kazis, muftis and maulvis who were well versed with the Muslim law and pundits who knew the Hindu law. These local authorities were called native law officers. Initially this policy of warren Hastings was applicable only in Bengal, Bihar and Orissa but gradually it spread to all places where the company's judicial system was introduced. However difficulties arose in this set up too. The British judges did not cherish the idea of being assisted by these local officers to a great extent. They did not trust the integrity of these officers sometimes. They wanted to master the personal laws of Hindus and Muslims so that they need not depend on them. They were at some point somewhat uneasy with this idea. They cherished non interference more than anything. Though this was not exactly non interference, they somehow were not comfortable with the idea and were eager to master the principles. But the policy of Warren Hastings of prescribing to the Hindus and Muslims would remain a dead letter if not for the native law officers i.e. if the policy was unaided. This is because the British judges were not familiar with the Indian system of law. They had no idea about the ideas, values and customs that were in place in India. They could not rely on books because the books were written in traditional languages which the judges had no idea. The other 2 difficulties that arose have been stated.
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The act of 1861 prescribed the application of the Hindu and Muslim laws for certain heads of litigation before the Supreme Court in Calcutta. A notion that appears to be common is that Hindus and Muslims did not have any definite system of laws and the laws were filled with superstition. This is not true. It was Hastings who made a sincere effort to remove this notion and he did succeed. He proved to the authorities in England that this was not the case. Apart from the native law officers being made available to the British judges, Hastings brought about yet another change. Warren Hastings projected the compilation of codes of Hindus and Muslim law, in English language, with the best authority available at that time.
Of all the provisions made by warren Hastings for the administration of justice in Bengal, Bihar and Orissa, the most enduring, and most significant was that which prescribed the Hindu law to the Hindus and Muslim law to the Muslims, for certain heads of litigation.
Hastings made sure he adhered to this policy of his. He knew for a fact that it would not be right to impose on Indian people foreign system. The British servants were governed by their own law. Hastings did not see why the Indians should not be governed by theirs. he did not make an attempt to intrude into the personal laws of Hindus and Muslims and hence abstained from doing so. He is no doubt respected for this. It was not a very easy job to actually formulate such laws and make sure everybody abide by it. He made sincere effort in upholding this law. His efforts did not go in vain.
This can be said because after he made a strong effort to uphold this rule, no attempt was made by anybody to alter it or go against it. Even the supreme courts in the presidency towns administered justice in a particular manner.
In course of time, his policy of preserving the indigenous Indian laws came to be appreciated to a great extent. At this point tolerance in religion is itself of fundamental importance. He made sure laws formulated did not clash with the local laws.
According to sir William Jones, a judge of the Supreme Court at Calcutta, who had done a thorough study on the Indian laws,
Nothing could be more obviously just than to determine private contests according to those laws which the parties themselves had ever considered as the rules of their conduct and engagements in civil life; nor could anything be wiser than, by a legislative act, to assure the Hindu and Mussulman subjects of great Britain that the private laws, which they severely hold sacred should not be suppressed by a new system.
This policy of warren Hastings holds good even to this day. While the personal laws of Hindus governs topics such as marriage, dowry, adoption and stridhana, the Muslim law deals with the Mohammedans in matters of marriage, divorce inheritance and wafks.
To prepare a code of hindu law, the following steps were taken by Hastings.
11 of the most learned and eminent pundits were invited to Calcutta from different parts of Bengal. The most authentic books on Hindu(modern and ancient) were collected. The original text of Hindu code was prepared in Sanskrit language. It was called "code of gentoo laws". This was translated to Persian from which an English version was prepared. In this book, civil and criminal laws were mixed up. It contained chapters which were sub divided into sections which were further sub divided into paragraphs. The law of contracts was also included in the book. It has chapters like debt, deposits, sale of a stranger's property. The code also contained a good deal of criminal law. The quality of justice was not very great though.
But the work was accepted by and large. It was received well. It was regarded as an 'authentic and reliable source of Hindu law for practical purposes' by many people.
The same motives which dictated the preparation of a code of hindu law and also induced warren Hastings to promote the preparation of a comparable work in Muslim law, so that this love could also be ascertained and some authentic guide furnished to the judges to handle cases in that area. a compendium might have been prepared, but a mere compilation might not have been regarded as authoritative because the muslims could treat it as a new code rather than a revision of the old. The translation on futwa alamgiree(Persian work under Aurangzeb) was undertaken. But this consisted only of some cases and decisions and defeated the purpose of developing the principles of Muslim law and hence the project was abandoned. It was then suggested that they translate a book which would help develop the principles of Muslim law. The book suggested was the Hedaya. The Hedaya was regarded as of canonical authority, and uniting in an eminent degree, all the qualities required.
The Muslims held Hedaya in high esteem. The book was in Arabic, it was translated to Persian by 4 moulvies and then further to English.
This indeed was helpful as there are instances where this book has been cited by the British judges.
These translations were carried on by warren Hastings under his immediate patronage and continued to exist only because of his constant and continuous support.
This attempt of Hastings to understand the personal laws of Hindus and muslins were to some extent carried on by his successors.
The system was not free from draw backs.
Firstly, the British judges did not cherish the idea of being assisted by the native law officers. The native law officers for Muslims were the kazi, mufi and maulvis.The native law officers for the Hindus were the pundits. The judges were more than eager to learn the principles of personal laws of Hindus and Muslims as fast as possible and ascertain their individuality.
Secondly, the kazis and pundits were not always well versed in their own system of law. The texts referred by them could be interpreted in more than one way. Their advice required constant references. And there references caused the delay in disposal of suits by the judges. Moreover the native law officers were more of religious teachers than lawyers.
In course of time, the British judges became self confident and were critical of their dependence on native law officers. They found it difficult to trust the law officers and often looked upon them with suspicion. This sense of distrust was rather expressed openly.
According to Hamilton, the translator of Hedaya, the native law officers, "were sometimes themselves too ill-informed to be capable of judging, and generally open to corruption."
Because the native law officers were subject to the aid of native law officers, it was more like the law officers decided the case and the role of British judges appeared to be minimum. Also the justice they provided was based on the advice of law officers whose knowledge may or may not be trusted upon sometimes. The accuracy of law officers was doubted. Therefore there was hesitation. And inconvenience prevailed. All these eventually led to the ascertainment of Hindu and Muslim laws. This means all these defects prevailed until the Hindu and Muslim law was codified by warren Hastings.
The researcher feels that the first attempt to understand the personal laws of Hindus and Muslims was made by none other than warren Hastings. He respected the freedom of the Hindus and Muslims and granted them their right to be ruled according to the laws of their religion without imposing English laws on them. He was also the first to codify Hindu and Muslim personal laws. This was a very constructive step taken by him. As said before the roots of present day system lay deep in the past. It is these attempts by people like warren Hastings that acted as a stepping stone which could be further improvised and altered. The researcher feels that though this system was not free from defects as mentioned previously, this policy in itself was very crucial. For a system to be altered, modified and made better there has to be a start somewhere. This was done by warren Hastings. He was aware of the fact that such a policy would not be easy to follow. But he made a sincere attempt to keep it up and he definitely succeeded in doing so. This can be said because this policy of warren Hastings was not changed or removed by anybody. Thus his policy, though not devoid of defects was extremely useful and crucial. This policy can also be differentiated from other policies because its impact was long lasting. It was the seed out of which the future laws were formulated