Law and State During Colonial Rule
Legal literature by academic historians about the process, nature and affect of British legal codification of Indian law during the colonial era, differs from the understanding of legal commissions and jurists in postcolonial Pakistan.
The latter outrightly admired the legal system they inherited, the detail to follow in a while. The former category of historians on colonial India had divergent views about the codification of laws in British India accommodating traditional laws.The ‘expropriation’[137] of law in India, but as a decisive step towards a modern system went through three stages, according to Marc Galanter. The first was Warren Hasting’s re-organization of the state in 1772 in Bengal, which was a general expansion of the government in isolation from courts and legislation; the second, after 1860, with extensive codification of laws and rationalization of the court system, where legislation provided the laws; and third, the post-independence stage.[138] Apart from continuity and discontinuity from the traditional Mughal era laws, the colonial system came to be based on the extraction of taxes with the state’s penetration in society working through the land revenue system. Existing social structures at all district and sub-district levels were given meaning through legal protection of landed property and its lawful usage exercised by the formal state structure. In West Bengal, the British East India Company (EIC) introduced the Law of Permanent Settlement and created a rural elite to extract surplus from the peasantry.[139] Addressing the issue of accommodating traditional law, for David Washbrook, that ‘pseudo-traditionalism’ was a reintroduction of more hierarchical and feudal structures.[140] Later, the state protected this class from moneylenders who had been strengthened due to increases in usury in the agrarian economy.
Landowners were converted into landlords and preserved through legislation.[141] According to Waseem, society was connected with the new state through the revenue bureaucracy mediated by the rule of law.[142] It was the law that tied India to the British Empire, both politically and economically.[143]Current Foucauldian translated these colonial indulgences in legal formations as ‘discourse formations’ by the ‘power-knowledge’ paradigm[144] and the building of ‘pan opticon’ prisons[145] and ‘rationalization’ of administrative bureaucracy as ‘techniques of disciplining power’.[146] Where were the excluded, dispossessed and the marginalized in these legal formations? The motives behind laws, i.e. to protect British trade and industry, were equally behind the crafting of trade union and workers’ legislation. After the Ghadr (revolt) of 1857, the wage-related disputes in public sector came within the ambit of jurisdiction of magistrates under The Employers and Workmen Dispute Act of 1860. The Act criminalized breach of contract by an employee but not employer.[147]
Exclusion by the East India Company was racial, placing British civilian bureaucracy on the top administratively. ‘Difference’ and ‘separation’ sharpened identities and added fears in the minds of the marginalized and excluded, dividing them further.[148] Chief Justice Munir of Pakistan (29 June 1954 to 2 May 1960) noted that legal codifications in British India sharpened divisions. For example, the Government of India Act, 1919 presumed communal electorates and diarchy, and the classification of subjects into ‘reserved’ and ‘transferred’.[149]
The relationship of the local polity with law-making, meanwhile, went through two phases. Before the extensive Ghadar (revolt) of 1857, military struggle and occupation were followed by colonial laws, such as the Permanent Settlement laws.
In the second phase, after 1857, the relation of the polity to laws changed and protests followed law-making. For example, The Government of India Act, 1858 came just after the revolt (Ghadar) of 1857 and was a constitutional document for colonial India, which transferred the administration territory under East India Company to the Crown.[150] The Indian Council Act of 1861 further deepened the local administration in colonial India.[151] Still, the local population was not included in the administration. Later, the formation of the Indian National Congress created a cadre of native politicians to include in the administration in 1892.[152] It expanded the Council of the Governor-General. Muslim minority consciousness was trigÂgered, resulting in demand of separate electorate and formation of the Muslim League (ML) in 1906, leading to the Minto-Morley Reforms 1909.[153] Afterwards, the politics of Congress and Muslim League followed the indigenization of Indian politics through The Government of India Act, 1919[154] and finally The Government of India Act, 1935.[155] Eventually, we see the ‘constitutional’ or ‘legal birth’[156] of two independent states in subcontinent in 1947.[157] Pakistan was arguably created through an Act of the British Parliament and not through a prior existence of a ‘revolutionary’ movement as in other colonized countries.[158]2.2
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