Anglo-Hindu law is the case law that developed in British India, through the interpretation of the Hindu scriptures and customary law in the British courts.
The first phase of Anglo-Hindu law started in 1772, and lasted till 1864, during which translations of ancient Indian texts along with textual interpretations provided by court-appointed Hindu Pandits were the basis of jurisprudence. During the same period, the Anglo-Muslim law for Indian Muslims was similarly extracted from Quran with interpretation provided by Muslim Qadis. The second phase of Anglo-Hindu law started in 1864, when the Hindu Pandits along with Muslim Qadis were dismissed due to growing inconsistencies in interpretation of texts and suspicions of corruption. The existing case law, along with textbooks that systematised it, were used for jurisprudence. The Anglo-Hindu law was also extended and modified by a series of Acts between 1828 and 1947, which were based on political consensus rather than religious texts.
History In 18th century, the British East India Company, which started out as an agent of the Mughal emperor, soon took over the political and administrative powers in India, it was faced with various state responsibilities such as legislative and judiciary functions. The administration pursued a path of least resistance, relying upon co-opted local intermediaries that were mostly Muslims and some Hindus in various princely states. The British exercised power by avoiding interference and adapting to law practices as explained by the local intermediaries. The colonial state thus sustained what were essentially pre-colonial religious and political laws for resolving conflicts, well into the late nineteenth century.
For Muslims of India, the code of Muslim law was readily available in al-Hidaya and Fatawa-i Alamgiri written under the sponsorship of Aurangzeb. For Hindus and other non-Muslims, this information was unavailable. The British colonial officials, for practice, attempted to extract from the Dharmaśāstra, the English categories of law and religion for the purposes of colonial administration. also in Malik Ram Felicitation Volume. ed. S.A.J. Zaidi (New Delhi, 1972), 190–1.J. D. M. Derrett, Religion, Law, and the State in India (London: Faber, 1968), 96; For a related distinction between religious and secular law in Dharmaśāstra, see
The early period of Anglo-Hindu Law (1772–1828) was structured along the lines of Muslim law practice. It included the extracted portions of law from one Dharmaśāstra by British-appointed scholars (especially Sir William Jones, Henry Thomas Colebrooke, Sutherland, and Borrodaile) in a manner similar to Islamic al-Hidaya and Fatawa-i Alamgiri.K Ewing (1988), Sharia and ambiguity in South Asian Islam, University of California Press, A digest of Moohummudan law on the subjects to which it is usually applied by British courts of justice in India Neil Baillie, Smith, Elder & Co. London It also included the use of court pandits in British courts to aid the British judges in interpreting Shastras just like Qadis (Maulavis) for interpreting the Islamic law.
The arrival of William Bentinck as the Governor-General of British India in 1828, marked a shift towards universal civil code, whose administration emphasised preference for the same law for all human beings, individualism and equal treatment to help liberate, empower and end social practices among Hindus and Muslims of India that had received much public coverage in Britain through the publications of Christian missionaries and individuals such as Thomas Macaulay.
Governor-General Dalhousie, in 1848, extended this trend and stated his policy that the law must "treat all natives much the same manner". Over time, between 1828-1855, a series of British acts of Parliament were passed to revise the Anglo-Hindu and Anglo-Muslim laws, such as those relating to the right to religious conversion, widow remarriage, and right to create wills for inheritance. In 1832, the British colonial government abolished accepting religious fatwa as a source of law. In 1835, the British began creating a criminal code that would codify the existing criminal code which was a complex conflicting mixture of laws derived from Muslim texts (Quran) and Hindu texts (Shastras), and this common criminal code was ready by 1855. These changes were welcomed by Hindu law reform movement, but considered abrogating religion-defined rules within the Muslim law. The changes triggered discontent, call for jihad and religious war, and became partly responsible for the 1857 Indian revolt against the British rule.
In 1864, after the East India Company was dissolved and India became a formal part of the British Empire, Anglo-Hindu law entered into a second phase (1864–1947), one in which British colonial courts in India relied less on the Muslim Qadis and Hindu Pandits for determining the respective religious laws, and relied more on a written law. A universal criminal code for India was adopted in 1864, the expanded to include procedural and commercial code by 1882, which overruled pre-existing Anglo-Hindu and Anglo-Muslim laws.A.K. Giri in However, the personal laws for Muslims remained sharia-based, while the Anglo-Hindu law was enacted independent of any text on matters such as marriage, divorce, inheritance and the Anglo-Hindu law covered all Hindus, Jains, Sikhs and Buddhists in India.Kunal Parker in The British crown enacted The Indian Christian Marriage Act, 1872 which covered marriage, divorce and alimony laws for Indian Christians of all denominations except the Roman Catholics.
The development of legal pluralism, that is separate law based on individual's religion was controversial in India, from the very start.
Sources of Anglo-Hindu law John Mayne, in 1910, wrote that the classical Hindu law has the oldest pedigree of any known system of jurisprudence., Stevens and Hynes, Harvard Law Library Series, see Preface section Mayne noted that while being ancient, the conflicting texts on almost every question presents a great difficulty in deciding what the classical Hindu law was. As more literature emerges, and is translated or interpreted, Mayne noted that the conflict between the texts on every matter of law has multiplied, and that there is a lack of consensus between the Western legal scholars resident in India.
Mayne and others used the Smriti to extract elements of Anglo-Hindu law. Sir William Jones translated the Manu Smriti into English, and it was largely the initial basis of Anglo-Hindu law.
As new literature, such as Naradasmriti and Mitakshara were discovered, disagreements between the smritis became difficult to resolve. Later writers assumed that the smritis constituted a single body of law, one part supplementing the other and every part capable of being reconciled with the other. Regional differences in the texts made the situation more complex.
Digests Two digests were made under European influence. The Vivadarnava Setu was compiled at the request of Warren Hastings and is commonly known as Halhed's Gentoo Code. The Vivada Bhangarnava was compiled at the request of Sir William Jones by Jagannatha Turkapunchanana and translated by Henry Colebrooke. It is commonly referred to as Jagannatha's or Colebrooke's Digest. The Gentoo Code, in its English translation is "worthless", because Halhed translated it from Persian, not from Sanskrit. This was not the case for Colebrooke's Digest.
The code and its development Colonial Hindu legal code marks a large span of nearly two-hundred years, beginning in 1772 and ending in 1947. This time period can be split into two main phases. The first phase, starting in 1772 and ending in 1864, is marked with three main proponents that include the translations of the dharmasastras by the British scholar administrators, the use of court pandits to define laws and rules, and the rise of case law. The second phase, starting in 1864 and ending in 1947, is marked by the dismissal of court pandits, rise of the legislative processes, and a codified law system.Lariviere, Justices and Panditas: Some Ironies in the Hindu Legal Past
Translation of sources The British were under the conviction that all Indian traditions were based on texts and ignored the tradition's customary significance. Furthermore, they thought that different commentaries and interpretations could be systematically sorted out by school and region. This led to the "objectification" of India, where the translation of the law code of India rendered it to more colonisation. The British cherry-picked the conflicting codes in ancient texts to assist colonial aims, through translation.
Warren Hasting's plan of 1772 motivated the British in India to learn Sanskrit as it was necessary for them to govern Bengal. In Hasting's plan Indians were to be governed by Indian principles, particularly in relation to the law. This collection of legal code, picked out from ancient texts of India, came to be known as Anglo-Hindu law. Hastings was aware that British law was too technical, complicated and inappropriate for the conditions in India. In 1774, Hastings wrote to the Lord Chief Justice denying the idea that India was ruled by nothing more than "arbitrary wills, or uninstructed judgments, or their temporary rulers". Hastings was confident that the Hindus and other original inhabitants of India knew written laws, and these were to be found in ancient Sanskrit texts. Initially, no European in Calcutta knew Sanskrit so Hindu pandits' were hired for the job. The original Sanskrit text was translated into a local language, which was then ultimately re-translated into English. Chains of translations were quite common and negatively impacted the value of the original text. The translation, completed by N. B. Halhed, was published in 1776 as A Code of Gentoo Laws; or Ordinations of the Pundits. The code was used in the East India Company's courts until the early 19th century.
Warren Hastings' Plan of 1772 Warren Hastings was appointed under a new act of Parliament, the East India Company Act 1772 (13 Geo. 3. c. 63), to the newly created position of governor-general and was instructed by the Court of Directors to stabilise the governance of the Bengal territories. Hastings' plan for the better administration of Bengal was centred on British officers being designated a "collector". The collector would be assigned to a defined area (district) with provincial boundaries and would have mixed executive and judicial power in these areas. Hastings is a very significant figure in the realm of British Imperialism; he was the man who knew the natives and who was to represent the forces of law and order.
He maintained that the natives had an effective administration structure consonant with Indian theory and practice. Though it was clearly not based on European principles, he premised his plan on this notion. Unfortunately, during the fifty years leading up to Hastings' plan, the Bengali system had nearly collapsed. Fortunately, Hastings was more than qualified to essentially start anew. He had a European education and for the first fifteen years of his career, he was stationed near the court of the last effective provincial governors of Bengal. Hastings knew how an Indian state functioned and believed that it was the textual tradition that was relevant to developing British administrative institutions.