Interview: Kamala Sankaran

Peepul ke Neeche—Conversations

British Colonialism and the Indian legal system

What were the contours of legal system in India in the pre-colonial times and how did British colonialism alter it to its detriment has great relevance today. After all the system that is in practice today is part of our colonial legacy. Shivanand Kanavi explored this important subject in this conversation with Dr. Kamala Sankaran, who teaches at the Faculty of Law, University of Delhi.

SK: Let us explore how colonialism changed the judicial system in India and what impact it had on the people. Even today we see big disconnect between people and the legal system. Empirically we can see it in the discontent that a large number of people have that they do not get justice or it is delivered too late that at times the person dies before he gets it. All kinds of explanations are given regarding this eg. paucity of judges, courts etc. But the system itself seems flawed. It is notable that one of the demands of people in Swat, Pakistan for several decades has been the establishment of Nizam a Adil system of courts rather than the British system mainly because of the inordinate delay in the latter. Why do people in the subcontinent feel alienated by the British system, what needs to be done?

KS: A good starting point is to look at what existed in India before the British came. It is difficult to simplify this since India is a complex region. Even before the Mughal rule there was in many parts of the country a shastra based system and a system based on custom or vyavahara which was based on the life experience of people, how they dealt with norms and the systems and institutions they had created. On top of that you have another system of institutions which were created with the advent of Mughal rule in India covering vast areas of India. Even this allowed plurality of systems. So what marked India before the colonial intervention is plurality of legal systems and institutions. One of the significant effects of colonialism was the imposition of uniformity. Pluralism was considered antithetical to a neat and orderly centralized system. It has its origins in the philosophy of British, based on the notion of an Austinian state where a single monarch or a power had all power and was indivisible. All powers devolved from top down. That was the structure of the modern nation state that the British were familiar with. So there was centralization of legislative authority and executive authority. So just seeing a region with multiple states was itself a shock to them having come from a unitary one. On top of it to have multiple legal systems where different castes and religions had their own institutions was quite alien to them. So one of the things they tried to bring is certainty and uniformity in the law; certainty and uniformity in judicial and legal institutions they created. That homogenization itself was a major shock to Indians. The judicial system is one part of the legal system. So let me confine myself to that.

SK: What is the difference between the two?

KS: I am using the terms in the sense that a legal system would involve all the laws, norms, standards that are laid down to determine what is right or wrong; correct or incorrect. It would also involve all that goes to enforce the legality that is the courts, police, jails etc. whereas judicial system is a part and parcel of the legal system. When the British came to India I think they realized that there was already a fairly well developed dispute resolution system of various types in different geographical regions. We know that when the British came to India around 1600 they chose not to immediately displace the local institutions if they could. Their strategy in India was different from their strategy in North America, or in parts of Africa or in Australia. Those they considered as res nullis (belongs to no one, belongs to those who find it first) countries, where there was an absence of a legal system – even though there were indigenous people in those lands. The Anglo-Saxon law in toto could be inflicted on all those people. In India they already knew was an advanced civilization with many institutions and laws in place. So they tread fairly cautiously. You can see it very clearly from 1600 to 1773 when the Regulating Act came into being. In 1726 they had the first charter which allowed courts to be set up in the three presidencies. The courts setup soon after the first factory was setup in Surat, were dispensing justice to only Englishmen and adjudicating on principles of equity, justice and good conscience which those colonial civil servants could well understand. In 1726 they decided that English law as adapted to Indian conditions could directly applied. In 1773 after the battle of Plassey, the entry of Warren Hastings in 1772 and the Regulation Act of 1773 they very clearly stated that with regard to personal matters pertaining to Hindus and Mohammedans, the English law would not apply but that it would for other aspects like property, commerce etc. They did setup the courts in civil jurisdiction. That is quite significant. The battle of Plassey won the British the diwani and not the nizamat. (Diwani is the civil administration and nizamat dealt with the criminal jurisdiction as well as the army in each subah. This was part of Mughal administration. To the best of my understanding it meant ‘he who had the purse would not have the army and vice versa’, which prevented any threat arising to the central order from the subahs.) The British won the diwani, they had the right to collect revenue but they did not have the right to dispense criminal justice. For a long time the nizamat continued to be at Murshidabad while the diwani was in Calcutta. The merger of the two took place later. There are legal historians who have shown how the nizamat steadily crumbled in power. Diwani adalat mainly dealt with disputes arising out of revenue. Very soon Warren Hastings was followed by Cornwallis with his permanent settlement and collection of revenue was of utmost importance to the colonial administration. In the diwani adalats that the British introduced the provision that if you were not able to pay the land revenue then you could sell a part of your land to pay it. Over a period of time nizamat adalats or fouzdari adalats came under British purview.
You asked what impact the British judicial system had. They set up these specialized courts manned by people trained in law with independent judges. That itself was a cultural shock for people of India because till that time if you look at the existing dispute resolution systems, typically at the village level, one had the panchayat system. Panchas would be notables who would be known locally. They were not ‘elected’ as we understand today. By the modern yardstick they would not be ‘independent’ as they would be members of the community. The idea of an independent judge is comes from Anglo-Saxon jurisprudence and it requires that the judge’s mind is a tabula rasa, a clean slate, with respect to the dispute and he only allows his mind to register that which is relevant to the dispute. The medium by which the judge appreciates the facts or the evidence is through the two lawyers representing either side. What they bring into the court largely determines the final outcome. So the relevancy of who should be allowed to address the court and complex rules of evidence concerning who could step into witness box and address the court, on what matters can be addressed became very important. So important unless one’s own eye or ears have seen/heard the transaction one could not testify and one could testify only with regard to that particular transaction. Whereas in the panchayat which was held in the open anybody who had even fringe knowledge could speak. They did not have to go through this filter of ‘is this relevant, are you worthy’. Therefore you had a sense of participation and anybody could speak. With this system one had a judge who was not known to the parties, which was seen as virtue in the English system but was alien to Indians. Language of course it goes without saying was English and one had to hire a lawyer and I am not going into that.

SK: This also creates the scope for the judge to let a case drop on technical grounds that the lawyer did not present the right thing or in the right way, even if the judge can see the right and wrong himself.

KS: That is true. There is very limited power of the judge to take judicial notice of certain things but his knowledge was as good or as bad as that of the lawyer who presents before him or her. There was also no ‘her’, so I might as well confine it to ‘him’! Thus, in all these areas: the choice of the judge; who could testify, regarding what they could testify; the location of the court. I am not romanticizing it but it was more participatory. There had very strict rules of relevancy. (Many of these continue till today). If a person had behaved in a similar manner in a previous transaction it could be ruled as an irrelevant fact unless you could construct an organic connection. Secondly they had these rules against hearsay. That meant that only a person who had directly seen or witnessed a particular event could have the right to speak. If you had heard it from your wife that she saw something and she was unable to come then your testimony would be hit by the rule against hearsay. Thus only a small group of people would have the capacity to address the court and other who may have accompanied the party to the court because they had knowledge about related matters would have been considered irrelevant, and that would create the perception that you were not being heard. People were priced out, they could not understand the language. Therefore these courts with their very specialized rules of evidence manned by very technical judges, and where you would have to place your full faith in the vakeel who alone would be the voice that would speak in the court, made the system inaccessible to Indians.
Look at the court buildings of the British. They built the supreme court of Calcutta, a grand structure many steps from the ground, where the judge (s) would sit high upon a bench, whereas earlier the panchas would sit on the ground etc. The whole geography and architecture of the court system alienated people. The form of decision making was also entirely different: the judgment was in the form of a ‘yes’ or ‘no’. Whereas the panchayats always negotiated, with no clear winner or loser, you are willing to find a mid-ground so that all could save face. People were used to that system where you would not lose everything but some form of justice would be done. So that you did not have a win-lose but a win-win.

SK: You were heard.

KS: Yes you were heard and the solution framed gave a lot of discretion to the decision makers to decide what would best serve the ends of justice. So long as their decision was not out of sync with vyavahara that was practiced they had a whole range of flexibility. In today’s parlance of alternative dispute resolution systems, panchayats had many desirable features. In contrast, for the British, the certainty of law that it was fixed before the dispute came into being was seen as a major virtue. So it needed a black and white text, written and published, which gave it stability and majesty.

In India if you take the law applicable to the Hindus one had shastras, the shruti and the smriti, which constituted the shastric sources of law. They were constantly subjected to interpretation by commentators, glossators etc. Then you also had vyavahara which varied from the shastras and varied in time and regionally. The vyavahara could override shastras also. In different parts of the country the usages developed and these were taken to be the law. For example regarding women’s rights to property. Even if some of the shastras did not permit it, in large parts of India women did own property so that was vyavahara, as for example in the south, east. So British found different practices in different parts of India and that went against their homogenous conception of law. So in 1773 Warren Hastings organized for the documentation in black and white of what the law is.

SK: Was this the Gentoo code?

KS: Yes that was Halhed’s ‘A Code of Gentoo Law’ that he translated and complied in 1776. Sir William Jones also translated some important Islamic texts. Earlier, the panchas had the freedom to fashion their remedies, had freedom to look at the exigencies of the situation, etc but once you were confronted with a law in black and white: for every contingency, the consequence was determined; there was far less flexibility. Interpretation was not given importance. All this contributed to the alienation.

When the British came they took the policy of “not interfering” with Hindu and Mohammedan law but it was only a lip service. In order to understand what was Hindu and Muslim law, the British decided to translate and codify it, it became fixed, and further, these were privileged over the vyavahara. They also started codification of other branches of law. While they had a so called ‘hands off’ approach to personal law, as for law regarding property, contracts they did not see readymade codes in place. They decided that those are the areas where they would themselves codify the law.

We should not forget that the period when Warren Hastings and Cornwallis were in India was also the period of the emergence of utilitarianism in England. James Mill, Jeremy Bentham etc were also great codifiers in their own right. It accelerated the codification of Indian law. The utilitarians believed that the body of common law developing in England was inadequate to deal with poverty thrown up by industrialization in England itself. They were great promoters of Poor Laws providing some benefits to working class in whatever way. The big laboratory for codification was India. The first Law Commission was setup in India in 1834 and the second Law Commission in 1853 and the main job of these commissions was prepare the codes. The amorphous body of English Common Law by which I mean the body of case law with various principles which was never codified in England itself was done for the first time in India.
You would be surprised to know that Indian codification went back to England in certain cases to assist in their codification nearly a century later. Thus, India was a major laboratory for codification for the British. They then used it to export it to all other colonies including the home country itself. For example the Trust Act was first codified in India and then went back to England. They codified the law relating to contracts, sale of goods, transfer of property, trusts and of course criminal law. In the Mughal courts they had their own criminal law and all that changed after 1858.

At the same time whenever issues came about taxes owed to the state arising out of Permanent Settlement, huge amount of litigation came up in Bengal, Bihar and Awadh in the Calcutta court. This required that property be put on the market for sale to recover the revenue. This in turn required the tweaking of traditional Hindu and Muslim Laws. Property was personal and private and its alienation was very difficult in pre-British times. The capacity of the karta of the Hindu undivided family to alienate was greatly assisted by the British courts. The body of Hindu law l law, really became a modified one, now referred to as the Anglo-Hindu law and Anglo-Muslim law because these were not the pure Hindu law and Muslim law that existed before the British times. The right to alienate served the British colonial interests. The doctrine of lapse also went against the older theory of kingship that existed in India but it was upheld by the Privy Council. The rights of zamindar, the duties of the zamindar - all these changed.

In areas which were not strictly personal law as understood by the British they felt free to legislate. After 1858 over the next 30 years they carried out a lot of legislation. For example, in 1860 they legislated the Indian Penal Code, the Societies Registration Act and little later in 1867 the Press and Registration of Books Act. British knew from their experience of the trade unions in their country that when the trade union movement shifted from an early Luddite position to a more advanced one, the organization of workers to fight for their rights became very important. Organisation was power, so the law declared that a group of people cannot form an organisation unless they are registered with the state. The British had done that in UK some dacades earlier.
SK: Plus they had seen organization among Indians in 1857.

KS: Yes, plus the power of propaganda, and so they found the need to enact the Press and Registration of Books Act. The three laws they brought in immediately after 1857 were these - to criminalise any kind of action against the state. The Criminal Procedure and Civil Procedure codes (1872) were then brought in. It is said that procedures are handmaids for justice, which is no doubt true. Instead of the ad hocism of court procedure in pre-British times, this was systematized. Once you have a centralized administration you cannot have panchayats in different areas doing things in their own way. The rules were created by a centralized power.

SK: What are procedures?

KS: In the civil side, for example, broadly that you must hear both the parties - that the other side must have a chance to file its written statement following the filing of the plaint; that the parties must exchange documents - so documents become very important, supplying the list of witnesses etc. The procedure becomes long drawn and each time the judge must decide what is relevant/irrelevant. The judge has to frame issues on which alone he will focus his mind and give a decision. In the criminal side there must be a FIR, there must be an offence under which you are charged, then you must be tried, who could be called as witness etc.

Broadly the laws of the 1860s were very much geared towards consolidating the colonial state; in the 1870s and 1880s it was consolidating the empire and hence the laws relating to contracts, sale of goods, trusts, telegraphs etc, which assisted the building of the economic empire. The other law that helped in the consolidation of the empire was the Land Acquisition Act (1894), which gave the power of eminent domain to the state to acquire land.

SK: Did the power of eminent domain not exist in the state in pre-British times?

KS: I do not think it existed in this far reaching form. The power of the state to levy a maximum of one third share of the produce existed but that you could completely dispossess somebody’s property to hand over to a third person does not seems to have been broadly practiced. Of course in times of war, etc requisitioning would have happened. But the British took it to new heights of acquiring land for all the major projects that the empire required like railways, industry etc. The irony is that they would acquire land in the name of the public interest and then hand it over to a private party also. The Telegraph Act was passed, the postal system was setup, a monopoly was created in communications. All this helped the empire.

Then came the legislation relating to the setting up of companies and regulating conditions in factories. I also want to mention the Workman’s Breach of Contract Act (1859). It enabled them to provide labour to serve the purposes of the British Empire the world over through indentured labour. They needed labour in the West Indies, Malaya, Sri Lanka, Africa etc. Agents would go to the villages and recruit. May be they did not capture and kidnap as was done for the slave trade in Africa but short of that everything else was done. Recruited workers were sent away on this major voyage. As Marx said the modern worker was ‘free’ in a double sense. He is ‘free’ from all property and he is ‘free’ to enter or not to enter into a wage contract. But in India the worker was not free to choose his employer. He would be criminally charged with breach of contract if he tried to abandon his employment and employer.

Thus the changes in the law between 1850’s to 1890’s consolidated the British colonial state in India. It disempowered the people. There were also laws that consolidated the economic might of the empire. This set the stage for rapid industrialization of India.

SK: What about the Arms Act (1878)?

KS: The main effect of that was to disarm the people by prohibiting the carrying of arms without a ‘licence’. In the American constitution the right to bear and carry arms has been seen as a residual right that people retain which has still not been taken away. But the British colonial theory never recognized this right. The British constitutional theory was based on the Austinian notion of a centralized authority which has all sovereign power and a subject has only those powers that are given back to him/her. The notion of an inherent liberty by virtue of being a human which were recognised by the French and American constitutions were not accepted in India. You only had the rights given to you by the crown. The colonial state formation had been a disempowering process.

SK: What about militias and Yeomen rising up to assist the state when there is a serious external threat?

KS: That may have existed in feudal times but as the modern nation state emerged, the sole monopoly and prerogative to inflict violence exists with the state. The right of the people to resort to violence would be a lawless act as you would “taking the law into your own hands”. In a very limited way the right of private defence was recognized. When somebody attacked you, you could use equal force to repel that person. But that could be done in a purely reactive way, not independently.

SK: You mentioned that they purportedly stayed away from the Hindu and Muslim Law but what was their attitude towards the huge mass of adivasis who belonged to neither? How did they interact with them their rights, customs, forms of state etc?

KS: As British territory increased (many princely states had far more progressive legislations than British India) as they came in contact with tribal communities. They just dealt with them using their full military might and colonial laws. For example they took over forests as crown property and created reserved forests, protected forests etc. Forest dwellers then became intruders who did not have any legal rights because they did not have systems of private property ownership which other communities may have had. It was a complete takeover of the natural resources.

SK: It was akin to what they did with Native Indians and Aborigines elsewhere.

KS: Yes.

SK: Clearly British intervention changed things fundamentally especially regarding conception of property rights but what happened during the earlier interventions by the Turks, Pathans, Mughals etc. How did they deal with the existing system?

KS: I am unable to answer this question fully but the existence of pluralism in many parts of India, even after the advent of these rulers indicates that much of the earlier legal regimes continued with some changes. It was certainly not the kind of seismic shift seen under the British.

SK: Could you speak about the colonial roots of Indian labour law?

KS: Who has the right to be a worker and employed is determined by the employers and that is something that labour law recognises. That is why it is not worker friendly. For example when capitalism and colonialism wanted expansion of employment they would drag persons away and compel them to work. One had the slavery system as practiced in Africa where literally a net was thrown over captured slaves and they were dragged off. In India they were not so crude (slavery had been abolished in England) but in every state there would be agents, jamadars, sardars who would go village to village recruiting workers. They were completely regulated by the British state because they wanted labour for plantations in India and for the whole empire. At that time you had to work and breaking out of your employment was considered a criminal act. However when the recession struck as in the 1890’s or in 1920’s labour law shifted away from trying to get more workers and recognized the inherent right of the employer to lay off or dismiss. Suddenly the contract of employment becomes a contract freely entered into with a free exit. So the job security that workers wanted has never been recognized. To the extent that workers are organized and have won some rights, there is some amount of redundancy and retrenchment compensation. So the inevitable is only postponed for a period in order that the worker can go out and look for another job. Labour law has this aspect that it accommodates the cycles of capitalism. Today we are told that labour law is inflexible and we need an exit policy and that is the problem with Indian industry. That is not always so. Problems with Indian industry have very little to do with the labour law.

SK: The impact of colonialism on Indian society is a fascinating subject as much of it lingers on to this day as a colonial legacy. We will continue this later too. Thank you.

Notes:
John Austin: John Austin (1790-1859) is considered by many to be the creator of the school of analytical jurisprudence, as well as, more specifically, the approach to law known as “legal positivism.” His work “Province of Jurisprudence Determined” (1832) had a far reaching impact. He greatly influenced his associates, Jeremy Bentham, James Mill, John Stuart Mill and Thomas Carlyle. According to 20th century theorists like H L A Hart, “Austin's influence on the development of England of [Jurisprudence] has been greater than that of any other writer”.
Sadr Dīwānī Adālat:
In Mughal and British India, a high court of civil and revenue jurisdiction. It was instituted by Warren Hastings, the British governor-general, in 1772. It sat in Calcutta (now Kolkata) and was the final court of appeal in civil matters; it consisted of the governor-general and two members of his council.
This high civil court, like its counterpart for criminal jurisdiction—the Sadr Nizāmat Adālat—was abolished after the Indian Mutiny of 1857–58, and its powers and jurisdiction were transferred to new high courts of judicature set up by the Indian High Courts Act of 1861.
(From http://www.ghadar.in/, Excerpts of this interview appeared in the quarterly magazine Ghadar Jari Hai--The Revolt Continues, Vol III, No. 1&2, Jan-June 2009)

Obit: Rajeev Motwani

I have just learned of the tragic death of Rajeev, at his home in Palo Alto on June 5, 2009.
It is shocking to say the least.
In my interactions with him I found him brilliant, child like, with a great sense of humour and genuine regard for people who helped him and inspired him in his life.
He was very good at explaining complex things in a simple manner.
From a theoretical computer scientist he had started calling him self a "start-up junkie", because of his enthusiasm in mentoring new entrepreneurs.
He was a classmate of Sharukh Khan, the Indian film star, in school and had great respect for him.
In his self effacing style he would say, 'that guy (Sharukh) is brilliant and will be the No.1 in anything he takes up'. Pushing into background his own remarkable intellectual achievements.
My heartfelt condolences to his family.
shivanand

See the brief profile I had written about him in 2004 at:
http://reflections-shivanand.blogspot.com/2007/08/rajiv-motwani.html

Obama, Indo-US Nuclear deal

A piece by Chidanand Rajghatta, Foreign Editor, Times of India, based in Washington, which has quoted me.

http://timesofindia.indiatimes.com/World/US/US-casts-shadow-on-nuke-deal-with-hardline-appointments/articleshow/4609970.cms

Obama picks are cool to US-India nuclear deal
3 Jun 2009, 0030 hrs IST,
Chidanand Rajghatta, TNN
WASHINGTON: The Obama administration on Monday named hardline non-proliferation warrior Robert Einhorn as the US State Department's special advisor for non-proliferation and arms control amid disquiet in business circles on whether the choice, along with other picks for key posts, will push the US-India civilian nuclear deal into cold storage.
Secretary of State Hillary Clinton announced her choice of Einhorn, a former Assistant Secretary of State for non-proliferation during the Administration of her husband Bill Clinton, as her advisor, saying he and his staff will "provide advice...on non-proliferation and arms controls issues, and will help develop and implement Administration policies and diplomatic strategies in those areas."
Einhorn, known as an unrelenting non-proliferation and arms control hawk, worked in the State Department for 29 years before retirement, and was a trenchant critic of the US-India nuclear deal. Jocularly called the "grand ayatollah" of non-proliferation, he argued that the Bush administration gave away the house to India in order to build a strategic relationship with India at the risk of undermining non-proliferation regimes.
"In seeking to make India an exception to longstanding non-proliferation rules, the Bush administration has given India virtually all that it wanted and has run major risks with the future of the non-proliferation regime," he told the senate foreign relations committee in one of the several hearings on the subject.
The choice of Einhorn as Clinton's advisor, coming after the naming of former Congresswoman Ellen Tauscher as the administration's Undersecretary of State for Arms Control and International Security and Timothy Roemer as US envoy to New Delhi, has cast a shadow on burgeoning US-India ties, specifically the US-India nuclear deal.
All three are considered hard-line non-proliferationists in the old Democratic mold, and business groups both in US and India are uneasy that they would put a spanner in the works of nuclear energy collaboration that some estimates put at over $150 billion over the next three decades.
An American commercial nuclear mission with 60 executives from 30 companies visited India earlier this year amid apprehension that US firms are behind the curve in capitalizing on the nuclear deal because of bureaucratic hitches in Washington and New Delhi, even as other countries are racing ahead. France and Kazakhstan are among countries that have sped forward with civilian nuclear collaboration with India.
Those hurdles might get even harder if past record is anything to go by. Former Indian officials hold Einhorn principally responsible for putting India in the nuclear doghouse for decades along with many proliferating nations despite its spotless record of on-proliferation. Ironically, they say, some of the most egregious acts of proliferation, including Chinese supply of nuclear technology and material to Pakistan, and A.Q.Khan network's proliferation to North Korea, Iran, Libya, and al-Qaida, among others, took place on Einhorn's watch.
However, a current official described Einhorn as a "pragmatist" with whom they have developed a working relationship. Speaking on background, the official suggested it was a "different era" in US-India ties and there were foreign policy interests that had to be taken into consideration by non-proliferationists. Another former official, T.P.Sreenivasan, a visiting fellow at Brookings Institutions, also said Einhorn was someone New Delhi "regularly exchanged ideas with" and saw no difficulty in engaging him. "He understands us," Sreenivasan said.
Some analysts suggest that formation of the Tauscher-Einhorn team is directed more against North Korea, Pakistan and other proliferators, and India has been moved out of the rogue's gallery. Both Barack Obama and Hillary Clinton voted for the nuclear deal when they were Senators (despite some reservations) and they are unlikely to undermine it, especially as it involves US commercial interests at a time of grave economic crisis.
"There is nothing to be alarmed about. We have got most of what we wanted in terms of global sanctions on nuclear trade having been lifted. Agreements already signed with Kazakhstan, France and Russia for Uranium and reactors. Now the ball is in US court," says Shivanand Kanavi, a business writer from Mumbai who has followed the nuclear deal closely and is writing a book on the Indian nuclear industry.
The Tauscher-Einhorn team is also expected to advance Washington’s multilateral non-proliferation agenda - including the ban in nuclear testing and the capping of fissile material - which have been revived by the Obama administration after the Bush White House had put it in cold storage for eight years. Kanavi does not expect too much pressure on India on this front either, saying "there is a long way to go before consensus is achieved on pacts such as NPT, CTBT, and FMCT, and they are replaced or re-architected."