Ironies of Colonial Governance: Law, Custom and Justice in Colonial India

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Environmental history in India: Part I: ecology and society in colonial India (SOC)

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The Intellectual Adventures of William Jones (II) : « The Justinian of India »

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  • Shopbop Designer Fashion Brands. Amazon Prime Music Stream millions of songs, ad-free. Willard explains the dangers of disassociating theory from practice in India, a sentiment echoed by Pandit Amarnath in his book rather tellingly named Living Idioms in Hindustani Music: A Dictionary of Terms and Terminology Pandit Amarnath explains how Hindustani music, for example the ragas, does not always lend itself to notation x-xiv.

    I do not wish to reduce the learned and generous essay written by Jones, but it is somewhat disconcerting that he should hunt for music among Brahman priests rather than musicians. This mummified approach to music may surprise but not distress. After all, music was but a passing interest. Far more problematic is his work in his own professional field — law.

    Basham, in his history of the period, is very clear. These were, with the passage of. Thus the. Many medieval Indian jurists wrote lengthy commen-taries on the Smrti literature. Thus gradually the smrti became a legal text. Basham points out that it cannot be too strongly stressed that the whole of Smrti literature is the work of Brahmans, who wrote from their own point of view. He refers to a more secular text, the. Romila Thapar, in her book From Lineage to State, explains the gradual creation of State in ancient India and the beginning of the establishment of a legal system:.

    Danda [ authority] provides the support to the extension of dharma,. The Dharma-sutras formalized not only the laws of varna in stating the obligations of each varna to society and the regulations regarding practices but also formalizing those customary laws which could not be ignored. Thapar points out that the Dharma-sutras were not a system of civil laws per se Thus both Basham and Thapar make two points clear.

    These were separate sections and treated separately by courts. Such a statement com-pletely ignores all the complexities analysed above. It was never meant as a legal system per se for all times. To follow the functioning of the ancient Hindu legal systems, it is helpful to turn to Duncan J. Derrett notes that during the ancient Hindu period, the.

    Shastras were constantly interpreted or even contradicted as desired by the King. Interpretation of Shastric law was never complete unless the surrounding circumstances of the alleged offender had been taken into account:. Interpretation, restriction to somewhat rare circumstances or flat abrogation, all these methods have been used from time immemorial to accommodate the written texts to the practical needs of the times.

    In addition, the political authority has in fact supplemented and contradicted the dharmasastra where it seemed necessary in the public interest.


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    • Derrett He also notes that in cases of litigation, custom could rule out book law Pandits were constantly interpreting, commenting ancient texts and adding their own digests and specialised treatises. Warren Hastings, hoping to provide a uniform corpus of law, had the. Code of Gentoo Laws, commissioned, and then translated by Nathaniel. Halhed into English Dazzled as he was by ancient Indian texts, it did not occur to him that law in India, anymore than music, theatre and literature, could have evolved with the times. But, as seen above, the Shastras were never meant to be taken literally; they were meant to be interpreted, and more importantly, to be contextualised.

      Jagannatha Tarkapancanana himself the pandit appointed by Jones to collaborate in the translation would have rejected as comical the notion that he had preserved the Shastras, as it were, in cold storage. It is not certain that this was the only alternative available. The various Muslim regimes accepted the authority of Hindu jurists in connection with Shastric laws, and Derrett notes that the French developed a system of a standing consultative committee of Indian jurisprudence which seems to have worked well.

      They enforced decisions arrived at entirely by native authorities, while keeping. The mummification of India had begun. Derrett observes that although in the s the British realised their mistake, it was too late to change the system, and as of the whole process of restating Hindu law came to be abandoned So although the British depicted themselves as preserving indigenous law, there were inevi-table changes simply because of the framework in which this law was defined and employed. Similarly, in many ways, courts now followed the sharia more closely than before, so that one of the results of the conquest by a non-Muslim power was that the administration of criminal justice was actually nearer to Islamic law than under the Mughal rulers.

      Ironically, the general effect of defining legal tradition in this way was to reinforce the hierarchical nature of the societies of the subcontinent and to consolidate traditional India. The scene was set for the emergence of a more stratified and rigid system of castes. This was especially because the early Orientalist scholars, like Jones,.

      In addition, as seen above, the ancient texts were never meant to be applied literally, without taking context into account. This enormous corpus of texts composed at different periods was meant to be inter-preted and expounded in context. Lata Mani sums up the whole process — after pointing out the hegemonic status accorded by colonial officials to brahmanic scriptures as records of Indian society, she writes:. This brings us back to our original question: can Indian realities be captured by Western Codes?

      For example, the preface to his translation, with its scholarly discussion on dates, tends to be more academic than legal. Too great a concentration on the smrtis.


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